Higher Education Emergency Relief — Department of Education, 34 CFR Parts 668 and 677 (Federal Register, May 14, 2021)

Summary

Final regulations from the Department of Education, published in the Federal Register on May 14, 2021, address eligibility to receive emergency financial aid grants to students under the Higher Education Emergency Relief programs. The Department removed the requirement that a student be eligible for title IV aid and defines a student as any individual who is or was enrolled at an eligible institution on or after March 13, 2020, the date of declaration of the national emergency concerning the novel coronavirus disease. The Department estimates that applying for the funds will cost students $22.4 million and administering them will cost institutions approximately $1.2 million, with transfers from the Federal Government totaling $76.2 billion, of which $31.5 billion must be used for emergency grants to students.

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DEPARTMENT OF EDUCATION
34 CFR Parts 668 and 677
[Docket ID ED–2020–OPE–0078]
RIN 1840–AD62

Eligibility To Receive Emergency
Financial Aid Grants to Students Under
the Higher Education Emergency
Relief Programs
AGENCY: Office of Postsecondary

Education, Department of Education.
ACTION: Final regulations.
SUMMARY: The Secretary amends the

Department of Education regulations so
that an institution of higher education
(IHE) may appropriately determine
which individuals currently or
previously enrolled at an institution are
eligible to receive emergency financial
aid grants to students under the Higher
Education Emergency Relief programs,
as originally enacted under the
Coronavirus Aid, Relief, and Economic
Security (CARES) Act (March 27, 2020).
DATES: This rule is effective on May 14,
2021.
FOR FURTHER INFORMATION CONTACT:
Karen Epps, U.S. Department of
Education, 400 Maryland Avenue SW,
Room 2B133, Washington, DC 20202.
Telephone: (202) 377–3711. Email:
HEERF@ed.gov. If you use a
telecommunications device for the deaf
(TDD) or a text telephone (TTY), call the
Federal Relay Service (FRS), toll free at
1–800–877–8339.
SUPPLEMENTARY INFORMATION:
Executive Summary

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Purpose of This Regulatory Action
On March 27, 2020, Congress enacted
the CARES Act, Public Law 116–136, to
help the nation cope with the economic
and health crises created by the novel
coronavirus disease (COVID–19)
outbreak. Section 18004 of the CARES
Act establishes the Higher Education
Emergency Relief Fund (HEERF) and
instructs the Secretary to allocate
funding to eligible IHEs in connection
with the COVID–19 outbreak. Section
18004(c) states that institutions must
use at least 50 percent of their
allocations ‘‘to provide emergency
financial aid grants to students for
expenses related to the disruption of
campus operations due to coronavirus
(including eligible expenses under a
student’s cost of attendance, such as
food, housing, course materials,
technology, health care, and child
care).’’
Neither section 18004(c) nor any other
part of the CARES Act defines the term

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‘‘student’’ or the phrases ‘‘grants to
students’’ or ‘‘emergency financial aid
grants to students.’’
On June 17, 2020, the Department
published an interim final rule (IFR) in
the Federal Register (85 FR 36494), in
which, for purposes of the phrases
‘‘grants to students’’ and ‘‘emergency
grants to students’’ in section
18004(a)(2), (a)(3), and (c) of the CARES
Act, ‘‘student’’ was defined as an
individual who is, or could be, eligible
under section 484 of the Higher
Education Act of 1965, as amended
(HEA), to participate in programs under
title IV of the HEA.
Upon further consideration and in
response to public comments, the
Department is removing the requirement
that a student must be eligible for title
IV aid to receive financial assistance
under the HEERF programs and
clarifying in the definition of ‘‘student’’
that any individual who is or was
enrolled at an eligible institution on or
after the date the national emergency
was declared for COVID–19 may qualify
for assistance under the HEERF
programs. Because an individual is no
longer required to be eligible for title IV
student aid (referred to herein as ‘‘title
IV eligible’’) to receive a HEERF student
grant, the Department removed the
definition of ‘‘student’’ from the general
provisions regulations that apply to
student assistance under the title IV
programs and relocated the revised
definition to 34 CFR part 677, which
governs the HEERF programs.
Summary of the Major Provisions of
This Regulatory Action
The final regulations define
‘‘student,’’ for purposes of the phrases
‘‘grants to students,’’ ‘‘emergency
financial aid grants to students,’’ and
‘‘financial aid grants to students’’ as
used in the HEERF programs, as any
individual who is or was enrolled (as
defined in 34 CFR 668.2) at an eligible
institution (as defined in 34 CFR 600.2)
on or after March 13, 2020, the date of
declaration of the national emergency
concerning the novel coronavirus
disease. This definition enables an IHE
to appropriately determine which
individuals currently or previously
enrolled at an institution are eligible to
receive emergency financial aid grants
to students under the HEERF programs,
as originally enacted under the CARES
Act and continued through the
Coronavirus Response and Relief
Supplemental Appropriations Act, 2021
(CRRSAA) (Pub. L. 116–260) and
American Rescue Plan Act of 2021
(ARP) (Pub. L. 117–2).

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Costs and Benefits
The emergency funds available under
CARES, CRRSAA, and ARP are
provided to allow students and
institutions to cope with expenses
related to the COVID–19 pandemic. The
broader definition of ‘‘student’’ adopted
in these final regulations ensures those
affected by COVID–19 expenses may
access funding and continue their
education and simplifies the
administrative burden on institutions.
The Department estimates that applying
for the funds will cost students $22.4
million and administering the funds
will cost institutions approximately $1.2
million. Transfers from the Federal
Government total $76.2 billion, of
which $31.5 billion must be used for
emergency grants to students.
Background: On March 27, 2020,
Congress enacted the CARES Act, Public
Law 116–136, to help the nation cope
with the economic and health crises
created by the COVID–19 outbreak.
Section 18004 of the CARES Act
establishes the HEERF and instructs the
Secretary to allocate funding to eligible
IHEs in connection with the COVID–19
outbreak. Section 18004(c) states that
institutions must use at least 50 percent
of their allocations ‘‘to provide
emergency financial aid grants to
students for expenses related to the
disruption of campus operations due to
coronavirus (including eligible expenses
under a student’s cost of attendance,
such as food, housing, course materials,
technology, health care, and child
care),’’ implicitly allowing institutions
to use more than 50 percent of their
funds for this purpose. Finally, section
18004(e) requires institutions to submit
reports to the Secretary describing how
the funds were used under the section
and authorizes the Secretary to specify
the time and manner of such reporting.
Neither section 18004(c) nor any other
part of the CARES Act defines the term
‘‘student’’ or the phrases ‘‘grants to
students’’ or ‘‘emergency financial aid
grants to students.’’ In the IFR, the
Department concluded that Congress
intended the category of those students
eligible for ‘‘emergency financial aid
grants to students’’ in section 18004 of
the CARES Act to be limited to those
individuals eligible for title IV aid.
The Department considered a number
of factors in reaching this conclusion.
For one, the Department was concerned
at the time it issued its IFR that an
interpretation of ‘‘student’’ in
‘‘emergency financial aid grants to
students’’ that was broad enough to
cover anyone engaged in learning, or
anyone enrolled in any way at an
institution, or anyone enrolled full-time

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Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations
at an institution in a program leading to
a recognized postsecondary credential,
would not be consistent with existing
law independent of title IV status.
Certain individuals without qualifying
immigration statuses are already
prohibited, under 8 U.S.C. 1611(a), from
receiving any ’’Federal public benefit,’’
and this prohibition applies
‘‘[n]otwithstanding any other provision
of law[,]’’ unless certain other
exceptions are met under 8 U.S.C.
1611(b). Section 1611(c) defines
‘‘Federal public benefit’’ to include (a)
‘‘any grant . . . provided by an agency
of the United States or by appropriated
funds of the United States,’’ and (b)
‘‘any . . . postsecondary education . . .
benefit . . . for which payments or
assistance are provided to an individual
. . . by an agency of the United States
or by appropriated funds of the United
States.’’ The Department originally
stated in the IFR that this prohibition
applies to the HEERF funds.
On the other hand, the Department
concluded that a narrower
interpretation of the term ‘‘student’’ in
the phrase ‘‘emergency financial aid
grants to students’’—for example, to
cover only the group that received
Federal Pell Grants as referenced in
section 18004(a)(1)(A)—would be overly
restrictive and less supportable under
the language of the CARES Act. As such,
the Department originally advanced
within the IFR its belief that Congress
intended that HEERF grants to students
under the CARES Act be limited to
those students who are eligible to
participate in the title IV programs.
The Department’s IFR was challenged
in a series of lawsuits, where plaintiffs
argued that the Department’s position
improperly excluded otherwise eligible
students from crucial emergency aid
amid the global pandemic. In each of
these suits, plaintiffs prevailed on the
title IV issue. In Oakley v. DeVos, No.
4:20–cv–03215–YGR, ECF No. 44, the
U.S. District Court for the Northern
District of California enjoined the
Department from enforcing any
eligibility requirement for students to
receive HEERF emergency financial aid
grant, including title IV’s eligibility
criteria and applicable restrictions
under 8 U.S.C. 1611(a) ‘‘with respect to
any community college in California.’’
Similarly, the U.S. District Court for the
Eastern District of Washington enjoined
the Department’s title IV restrictions
(though not the application of 8 U.S.C.
1611(a)) as to IHEs in the State of
Washington. Washington v. DeVos, No.
2:20–cv–00182–TOR, ECF No. 31, 63.
Decisions in Noerand v. Devos, Civil
No. 20–11271–LTS (D. Mass. Jul. 24,
2020) and Massachusetts v. DeVos, No.

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1:20–cv–11600–LTS, ECF No. 3,
similarly found that limiting HEERF
grant to ‘‘students eligible under Title IV
would lead to absurd results[,]’’ and
additionally concluded that the CARES
Act ‘‘constitutes a statutory exception to
Section 1611’s general denial of federal
public benefits.’’ These findings are
consistent with the public comments
received.
Along with taking stock of these legal
decisions, the Department began the
process of reviewing the substantial
number of public comments it received
on the IFR that requested the
Department to amend its definition of
‘‘student’’ for the purposes of HEERF
grants to students. Of the 4,149 public
comments the Department received, less
than 10 were written in support of the
Department’s restrictions on HEERF
student grant eligibility, and even those
limited public comments were more
focused on support for the concept of
‘‘emergency financial aid grants’’ for
students with costs associated with the
coronavirus rather than the restrictions
articulated in the IFR itself.
Subsequently, on December 27, 2020,
former President Trump signed into law
the Coronavirus Response and Relief
Supplemental Appropriations Act, 2021
(CRRSAA) (Pub. L. 116–260). This law
made available an additional
approximately $22.7 billion for IHEs
under HEERF programs (referred to
herein as HEERF II or CRRSAA
funding), with funding appropriated for
the existing (a)(1), (a)(2) and (a)(3)
programs previously authorized under
Section 18004 of the CARES Act, as well
as funding for a new (a)(4) program
authorized under the CRRSAA. As with
the CARES Act, the CRRSAA
authorized, and in some cases required,
institutions to use their HEERF award
for ‘‘financial aid grants to students,’’
without defining the terms ‘‘students’’
or ‘‘financial aid grants.’’ See CRRSAA
section 314(c)(3). However, unlike the
CARES Act, CRRSAA directed that in
‘‘making financial aid grants to students,
an institution of higher education shall
prioritize grants to students with
exceptional need[.]’’ See id. As a result
of this new requirement of how
institutions must distribute HEERF II
financial aid grants to students, the
Department announced in question 16
of the HEERF II Public and Private
Nonprofit Institution (a)(1) Programs
(CFDA 84.425E and 84.425F) Frequently
Asked Questions published January 14,
2021, and updated March 19, 2021,
(https://www2.ed.gov/about/offices/list/
ope/updatedfaqsfora1crrssaheerfii.pdf)
that the definition of student in the IFR
would not apply to funds under the
CRRSAA.

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Finally, on March 11, 2021, President
Biden signed into law the American
Rescue Plan Act of 2021 (ARP) (Pub. L.
117–2). This bill provided an additional
approximately $39.6 billion for the
HEERF programs (HEERF III or ARP
funding) and retained the same
prioritization requirement for ‘‘students
with exceptional need’’ as was
contained in CRRSAA. Again, ARP did
not define the term ‘‘student’’ or
‘‘financial aid grants.’’
In this final rule, we are revising the
definition of ‘‘student’’ to make clear
that any individual who is or was
enrolled at an eligible institution on or
after the date the national emergency
was declared for COVID–19 may qualify
for assistance under HEERF program
requirements. Because an individual is
no longer required to be title IV eligible
in order to receive a HEERF student
grant, we are removing the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocating the revised definition to
34 CFR part 677, which governs the
HEERF programs.
The Department adopts this change
for several reasons. Upon further review
and in consideration of the comments
received in response to the IFR, first we
believe that adopting a definition of
‘‘student’’ that is not limited to title IV
eligibility better reflects Congress’s
intent when it created the portion of the
Higher Education Emergency Relief
Fund that goes to students in the CARES
Act. Congress created a program that
was designed to award emergency
financial aid grants in the most
expedient way possible without the
establishment of unnecessary
roadblocks that would slow down the
ability of institutions to help students
address added expenses stemming from
the COVID–19 national emergency.
Defining ‘‘student’’ to mean anyone who
is or was enrolled at an eligible
institution gives institutions of higher
education maximal flexibility to focus
on identifying the students they think
are most in need of help instead of
getting tied down in checking eligibility
criteria.
By contrast, a definition of ‘‘student’’
tied to eligibility for title IV financial
aid would result in significant
additional roadblocks and delays. It
would require institutions to encourage
students to complete the Free
Application for Federal Student Aid
(FAFSA) and then process those
applications before being able to award
aid. If an institution decided to create its
own form, it would have to find ways
to verify various eligibility requirements
for title IV aid, which would also be

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time consuming if not impossible to do
without using the FAFSA. For instance,
institutions would need to find ways to
verify that students had valid Social
Security numbers or were otherwise
eligible noncitizens, which could mean
checking with the Social Security
Administration or the Department of
Homeland Security. Institutions would
also need to ensure male students had
registered with the Selective Service.
Students filling out the FAFSA,
meanwhile, could face additional
burdens, such as the verification
process. These concerns could
particularly be an added burden for
veterans because they are less likely to
complete the FAFSA because they
receive benefits from other Federal
agencies. Students may also be confused
and think they need to qualify for needbased title IV aid to receive emergency
grants and not apply when they do need
the funds. Finally, because colleges are
not required to award emergency grants
to all students, there are some
individuals who could end up taking on
the burden of completing the FAFSA
and ultimately not receive any further
assistance.
Second, a simpler definition of
‘‘student’’ ensures that colleges can
assist any student harmed by the
COVID–19 national emergency. Data
show that the past year has wrought
disproportionate negative effects on
low-income individuals, individuals of
color, and the communities in which
they reside.1
These funds are available to respond
to the effects of an unexpected and
once-in-a-century pandemic. No student
could have reasonably foreseen or
planned for the substantial added
expenses he or she is facing because of
the COVID–19 national emergency. For
some, that may mean lost jobs or
reduced wages. For others it could mean
sudden and unexpected needs to travel
home, while others may face added
expenses by not being able to go home
at all. Students who were once in stable
financial situations could now find
themselves in need of significant
support. Those who were economically
hurting before may be even worse off.
The definition of ‘‘student’’ in this final
rule allows an institution of higher
education that knows its individual
students better than the Department
ever could to make the proper decisions
about who needs the support. As
institutions make these decisions, we
note that the distribution of HEERF
emergency financial aid grants must
prioritize grants to students with
1 https://www.nber.org/system/files/working_
papers/w27392/w27392.pdf.

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exceptional need, such as students who
receive Pell Grants, and must not be
distributed in a manner that excludes
individuals on the basis of race, color,
national origin, disability, or sex. See,
e.g., 42 U.S.C. 2000(c)–(d) (Title IV and
Title VI), 29 U.S.C. 701 et seq., 20 U.S.C.
1681 (Title IX).
Third, the Department now recognizes
it would be inappropriate to apply the
definition of ‘‘student’’ originally
articulated in the IFR because the
Department no longer considers that a
student would need to be eligible for
Federal financial aid under title IV of
the Higher Education Act. The
Department is changing its position on
this issue after being persuaded by
commenters that the requirement in the
CARES Act that the Department award
funds using the same mechanisms used
to distribute title IV aid as well as
saying that funds could go to any
portions of a student’s cost of
attendance do not provide compelling
evidence that emergency grants should
therefore only be limited to students
eligible for title IV financial aid. When
Congress created these funds, it
indicated they should be awarded to
institutions through the same
mechanisms used to distribute title IV
financial aid. We believe this decision
indicated a Congressional preference for
using a process that institutions are
already familiar with, rather than an
entirely new mechanism, in order to
expedite the distribution of funds. We
do not believe this procedural decision
reflects an indication that fund
distribution must be restricted only to
those eligible for title IV financial aid.
Congress created a special distribution
formula for the funds instead of relying
on existing ones used for campus-based
aid. It gave institutions discretion over
how to award funds instead of spelling
out eligibility criteria. While Congress
did ask that these funds be awarded
through the same mechanisms used to
distribute title IV financial aid, that
language signaled intent that these
funds should not go through a
complicated new award process.
Similarly, while the CARES Act does
state that emergency financial aid grants
can go to any part of a student’s cost of
attendance as defined under the Higher
Education Act, this is a concept that is
not limited to recipients of title IV aid.
The cost of attendance is a commonly
used way of disclosing the price of
education to students and the public on
institutional websites and is a broadly
used term of art that Congress adopted
to make the funds available for a wide
array of purposes while also ensuring
that they would cover expenses related

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to attending postsecondary education.
Finally, the agreement that institutions
of higher education must sign to receive
their student portion of funding states
that ‘‘[t]he Secretary does not consider
these individual emergency financial
aid grants to constitute Federal financial
aid under Title IV of the HEA.’’ The
Department thus no longer believes that
these aspects of the statute support its
prior narrow definition of ‘‘student.’’
Fourth, the time-limited and
exceptional nature of these funds also
justifies a more flexible approach to
defining eligibility. Barring further
Congressional action, funds for
emergency financial aid will not be a
recurring source of support. No student
in the future could reasonably expect to
be able to enroll in postsecondary
education solely to receive this help,
just as they could not have expected
that such funds would have been
available in the first place. This is a
once-in-a-century pandemic, and the
effects are clearly felt worse by lowincome individuals as well as
individuals of color and the
communities in which they reside. The
emergency financial aid grants are not a
recurring source of support—they are a
crucial response to an unprecedented
time and are time limited in their use
and not expected to recur.
Fifth, Congress was explicit in other
parts of the CARES Act where it did
want greater limitations placed on the
availability of other forms of assistance,
such as when it noted that nonresident
aliens were ineligible for individual
recovery rebates. The fact that it chose
to specifically delineate eligibility in
other parts of the CARES Act but did
not do so for the emergency financial
aid grants implies a desire for broad and
unconditional eligibility.
Sixth, adopting a broad definition of
student aligns the eligibility terms with
the formula used to calculate allocations
for institutions of higher education.
Congress created an allocation formula
that, while varying between the CARES
Act, CRRSAA, and ARP, has always
taken into consideration an institution’s
enrollment of full-time equivalent
‘‘students’’ without regard to their
immigration status—including if they
were undocumented or international
students. See CARES Act section
18004(a)(1); CRRSAA section 314(a)(1);
ARP section 2003. Adopting a more
restrictive definition of ‘‘student’’ for
eligibility that excludes those same
students who Congress sought to
include in the allocation formula would
lead to establishing two different
definitions of the term ‘‘student’’ and
add to confusion. Moreover, the
definition of student in this final rule

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avoids the situation in which a student’s
attendance at a college would have
affected the amount of money available
to it through HEERF but they were then
not eligible to receive any of those
funds.
Seventh, while it is important the
Department of Education (Department)
be concerned with waste, fraud, and
abuse, we no longer believe a definition
of student tied to eligibility for title IV
financial aid would be an effective way
to address those issues. There are
already requirements in place to prevent
institutions of higher education from
offering incentive-based compensation
to recruiters as a way of dissuading
overly aggressive attempts to bring in
students. Private for-profit institutions
are subject to a requirement in which
they demonstrate that they obtain a
certain share of their revenue from
sources other than the Department’s title
IV programs. See 34 CFR 668.14(b)(16),
668.28. Institutions themselves,
meanwhile, must administer a
Satisfactory Academic Progress (SAP)
policy to ensure students are moving
toward completion of their programs. 34
CFR 668.34. This is in addition to the
fact that the HEERF programs explicitly
prohibit institutions of higher education
from using the funds they receive for
providing pre-enrollment recruitment
activities. See CARES Act section
18004(c), CRRSAA section 314(d)(3).
In sum, Congress established a
flexible, time-limited fund to respond to
an unexpected and once-in-a-century
national emergency. It passed
emergency legislation to create a
program for assisting students in a rapid
manner by delegating significant
discretion to colleges so they can get the
funds to affected individuals right away.
The novel coronavirus does not choose
to limit its effects based upon whether
a student qualifies for title IV aid.
Instead, it has disproportionately
brought devastation to individuals who
were already in the most precarious
places in American society, particularly
low-income students and families,
students and families of color across the
country.2 Adopting a broad and simple
definition of a ‘‘student’’ allows the
emergency grant funds for students to
maximize their purpose and fully live
up to Congressional intent.
Public Comment: In response to our
invitation in the interim final rule (IFR),
4,149 parties submitted comments on
the IFR. In this preamble, we respond to
those comments, which we have
2 https://news.harvard.edu/gazette/story/2020/10/
covid-carries-triple-risks-for-college-students-ofcolor/; https://www.insidehighered.com/news/2020/
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grouped by subject. Generally, we do
not address technical or other minor
changes.
Analysis of Comments and Changes:
An analysis of the public comments and
of changes since publication of the IFR
follows.
General Support
Comments: Some commenters
supported the definition of ‘‘student’’ in
the IFR that restricted individuals who
qualify for HEERF grants to those that
are eligible for title IV financial
assistance. One commenter believed
that the restrictive definition was
appropriate and clearly explained,
while another commenter stated that
even with the restrictions placed in the
definition, HEERF grants would still be
able to help students.
Discussion: As discussed more
thoroughly in this preamble, in view of
the comments objecting to the definition
of ‘‘student’’ in the IFR, and District
Court rulings regarding the IFR, we have
removed the prerequisite that a student
must be eligible for title IV aid to
receive funds under the HEERF
programs.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.
General Opposition
Comments: Several commenters
believed that limiting HEERF grants to
title IV eligible students is contrary to
the purposes of the CARES Act to
provide emergency relief to institutions
and students who need support during
the pandemic. The commenters noted
that students across the country need
relief to overcome the financial
devastation brought on by the
coronavirus pandemic, and that
Congress passed the CARES Act to
provide wide-scale relief directly to
students as quickly as possible. The
commenters argued that requiring
students to demonstrate eligibility for
Federal financial aid will (1)

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disproportionately harm minority and
immigrant communities, (2) impose
additional burdens and hurdles on
students to show they are title IV
eligible, and (3) create unnecessary
delays in providing needed assistance to
desperate students. For these reasons,
the commenters urged the Department
to immediately withdraw the IFR.
Echoing these concerns, other
commenters admonished the
Department for using immigration
status, instead of need, as a basis for
establishing eligibility for HEERF grants.
Some of those commenters noted that
all individuals, including
undocumented students with or without
Deferred Action for Childhood Arrivals
(DACA) status, have the right to basic
levels of safety, health, and security, but
argued the IFR ensures that those
already shut out from these basic rights
will fall further behind. In addition,
commenters believed that the IFR (1)
will exclude non-degree seeking
students and students enrolled in shortterm certificate programs, and (2) is a
cruel, confusing, and counterproductive
policy that will exclude large numbers
of low-income, Black, and Latino
students, as well as veterans and
noncitizens. The commenters urged the
Department to immediately withdraw
the IFR.
Some commenters believed that
Latino and immigrant students would
be disproportionately affected by the
IFR, citing Oakley v. DeVos, No. 20–cv–
03215–YGR (N.D. Cal. June 17, 2020).
The commenters argued that many
immigrant students (Dreamers with or
without DACA status, other students
with undocumented status, and those
with Temporary Protected Status, Uvisas, or pending asylum applications)
would not receive assistance to continue
their education or cover necessities,
such as food, housing, and healthcare.
The commenters stated that these
students: (1) Are experiencing the same
economic hardship due to the pandemic
as their peers, if not more; (2) come from
communities that are among the most
harmed by the COVID–19 pandemic; (3)
may be much more susceptible to
contracting and dying from COVID; and
(4) are also excluded from many existing
State and Federal assistance programs
that could provide COVID–19 relief. The
commenters urged the Department to
immediately withdraw the IFR.
Some commenters believed that the
IFR’s restrictions will deprive many
students, who otherwise demonstrate
significant need during the COVID–19
crisis, from receiving assistance, thereby
jeopardizing not only their health,
safety, and education, but also the
continuity of higher education

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communities. The commenters noted
that the definition of ‘‘student’’ should
include students in default on a loan
issued by the Department, students who
are not making satisfactory progress,
and certain noncitizens and students
without Social Security numbers,
including undocumented students.
Other commenters believed that the
Department understated the number of
individuals who would be excluded
from receiving HEERF grants under the
IFR. Whereas the Department estimated
that the IFR would exclude more than
1.12 million noncitizens, the
commenters stated there are many other
students who are ineligible for title IV
aid on different grounds, and that many
of those students are experiencing
urgent economic challenges stemming
from the pandemic and need assistance.
In addition, one commenter stated that
the IFR would exclude as many as
800,000 students in one State’s
community college system, including
veterans, citizens who have not
completed a Federal financial aid
application, and noncitizens, including
undocumented students. According to
the commenters, those 800,000 students
would represent over half of the
approximate 1.5 million students
enrolled in the State community college
system during the Spring 2020 semester.
Several commenters noted that
institutions still have HEERF funds
available and would distribute some of
those funds to students who are
otherwise ineligible under the IFR.
Another commenter believed that a
more inclusive approach to eligibility
would serve the educational policy goal
of more diverse college educational
learning environments, which was
recognized by the Supreme Court as a
compelling government interest in
Grutter v. Bollinger. Similarly, other
commenters argued that the IFR would
undermine efforts to foster racial equity,
diversity, and inclusion on college
campuses, and make the playing field
more uneven for undocumented
students and more difficult for colleges
and universities to meet their
educational and moral obligations to
students of color, students with low
incomes, undocumented students, and
otherwise marginalized students.
Discussion: We agree with the general
sentiment of the commenters that,
without financial assistance from
HEERF grants, some students may be
adversely affected or may not be able to
continue their education. Part of the
Department’s core mission is to ensure
equal access. In that regard, as a policy
and ethical matter, and in light of other
comments addressed below and the
policy further explained earlier in this

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preamble, we are compelled to reverse
a decision that denies financial
assistance to our most needy and
vulnerable students.
An institution that has HEERF funds
available from the CARES, CRRSAA, or
ARP, may, as of the effective date of this
final rule, use those funds to provide
financial assistance to any student who
is enrolled at the institution or was
enrolled at the institution during the
COVID–19 emergency.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we are removing the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocating the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Comments: Several commenters
objected to the IFR on moral grounds,
arguing that, at this time of crisis, the
Department should not be denying
assistance to vulnerable individuals.
Some commenters noted that, prior to
the IFR, the Department encouraged
institutions to award emergency grant
funds to students with the greatest need,
but by subsequently changing course
and narrowing the eligibility
requirements for those funds in the IFR,
the commenters opined the Department
promulgated a cruel and ideologically
motivated rule that will hurt some of
our Nation’s most vulnerable college
students.
Other commenters asserted that for
many students, receiving a few hundred
dollars to purchase a laptop or help pay
rent can make the difference between
completing their coursework or
dropping out. The commenters argued
that by excluding students who are
ineligible for title IV aid, the
Department has denied assistance to
many students who have the greatest
financial need and are among the least
likely to find help elsewhere.
Several commenters asserted that
many students who are not eligible for
title IV aid and their families are
struggling financially from employment
issues stemming from the COVID–19
emergency. One commenter stated that
many undocumented students enrolled
at a community college have lost jobs in

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industries affected the most by COVID–
19—healthcare, food service, and
hospitality—and without income from
these positions, students are struggling
to pay for basic needs. Similarly, other
commenters noted that due to the
COVID–19 pandemic, many
undocumented students or their spouses
and children who had lost jobs were
ineligible for a Recovery Rebate check
under the CARES Act. Other
commenters stated that minority
communities have disproportionately
record levels of unemployment, noting
that among Hispanic and Latino
individuals, the unemployment rate
jumped to 18.9 percent in April 2020,
dropping only slightly to 17.6 percent in
May 2020, and 14.5 percent in June
2020. In addition, the commenters
stated that some of those students are
the sole provider in their homes because
of the COVID–19 pandemic, as family
members have lost jobs.
Some commenters noted that many
immigrant and other students who are
not eligible for title IV aid face unique
challenges, such as a lack of health
insurance, and those students are also
suffering disproportionate health effects
from the pandemic. The commenters
stated that as of 2017, 94 percent of
DACA recipients were Hispanic and
minority communities in the United
States have been afflicted by COVID–19
at disproportionate rates. According to
the commenters, these health concerns
are especially pronounced because
many students who are not eligible for
title IV aid are on the front lines of the
COVID–19. The commenters asserted
that these students are more likely to
fall through the cracks of our medical
system and lack basic safety net
protections, making it more untenable to
withhold aid. Similarly, other
commenters argued that many students
who are not eligible for title IV aid and
their families are uninsured, noting that,
as of 2018, more than four in ten
undocumented immigrants (45 percent)
were uninsured.
Other commenters believed that
undocumented students may help to
mitigate shortages in the healthcare
industry. The commenters stated that
many undocumented graduate students
hold degrees in STEM fields, with many
having degrees in healthcare-related
fields, which is critical to combat the
nation’s severe shortages resulting from
the COVID–19 crisis.
One commenter believed that title IV
ineligible students, such as
undocumented students, facing dire
economic circumstances stemming from
the pandemic may have to postpone or
forego their higher education, absent
funding from the CARES Act.

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Other commenters believed that
undocumented students at community
colleges are particularly disadvantaged.
The commenters noted that over 80
percent of undocumented students
attend two- and four-year public
colleges and universities, but
undocumented students at community
colleges are more likely than
undocumented students at four-year
colleges to face extremely high levels of
financial stress. The commenters stated
that many of these students come from
families in poverty and thus are unable
to rely on their parents for financial
assistance and those students may have
to support their families financially.
According to the commenters,
community colleges receive
disproportionately smaller shares of
emergency grant funding compared to
other institutions and are thus unable to
meet the needs of undocumented
students.
Discussion: Upon further review, we
agree with the commenters that HEERF
grants should be awarded based on need
and should not consider title IV
eligibility of students. As mentioned by
the commenters, institutions may have
awarded HEERF grants to students
without qualification on a priority-need
basis before the IFR was published. In
the preamble to these final regulations,
we fully explain our reasoning for
taking a position aligned with the one
taken in the Department’s initial
guidance by allowing institutions to
award HEERF funds to any student who
is enrolled or was enrolled at the
institution during the COVID–19
emergency. In addition, as noted above,
HEERF emergency financial aid grants
must not be distributed in a manner that
excludes individuals on the basis of
race, color, national origin, disability, or
sex. See, e.g., 42 U.S.C. 2000(c)–(d)
(Title IV and Title VI), 29 U.S.C. 701 et
seq., 20 U.S.C. 1681 (Title IX).
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF program. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.

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Financial Burden on Students Ineligible
for Title IV
Comments: Several commenters
asserted that in issuing the IFR the
Department failed to consider the
economic effect of excluding 1.12
million undocumented students from
eligibility for grants from HEERF funds.
These commenters variously pointed to
the lack of alternative funding available
to such students resulting from the loss
of campus jobs and internships, the
collective ineligibility of undocumented
immigrants to receive stimulus
payments under the CARES Act’s
Recovery Rebate provision, the high
levels of poverty among families headed
by undocumented immigrants, and the
disproportionate effect that the COVID–
19 pandemic has had on these families
as reasons for why the IFR is unfair in
its effects.
Other commenters argued that
denying undocumented students access
to funding under the HEERF programs
would have a negative impact on society
and the economy. These commenters
suggested that students lacking title IV
aid who, by extension, would be
ineligible for grants from HEERF funds,
may be forced to curtail studies,
decreasing their chances of ever
obtaining a postsecondary credential.
Reduced earnings, underemployment,
greater demand on public assistance,
potential defaults on student loan debt,
and lack of civic engagement were cited
as examples of the increased societal
burden the commenters viewed as likely
to result from students being unable to
complete degree programs.
Finally, one commenter stressed the
genuine desire of many institutions to
do something for students who are not
eligible to receive title IV funding and
that it is unsound policy to prevent
these students from accessing critical
funding during a pandemic.
Discussion: Upon further
consideration, we agree with the
commenters that the better policy
involves greater consideration of the
significant negative effects on students
of restricting eligibility for grants from
HEERF funds to those students who are
title IV eligible. Moreover, we are
convinced of the overall benefit to
society, as well as the economic health
of the country, accruing from enabling
as many students as possible (including
undocumented students) to continue
with their studies during this difficult
period. Inasmuch as funding under the
HEERF programs is intended to assist
students who are attending eligible
institutions of higher education and
who have incurred expenses related to
the COVID–19 pandemic, the

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Department believes that providing
institutions with the latitude to offer
such assistance to all students is an
imperative. Accordingly, we have
revised the interim final rule to state
that a student is defined as any
individual who is enrolled in an eligible
institution of higher education.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under HEERF
programs. Because an individual is no
longer required to be title IV eligible to
receive a HEERF student grant, we have
removed the definition of ‘‘student’’
from the general provisions regulations
that apply to student assistance under
the title IV programs and relocated the
revised definition to 34 CFR part 677,
which governs the HEERF programs.
Confirming Title IV Eligibility
Comments: Several commenters
offered that many students who are
eligible for title IV aid will be unable to
confirm that eligibility, and that the IFR
failed to consider the effects of this on
such students. The commenters cited
the lack of necessary information,
unfamiliarity with the financial aid
process, and FAFSA complexity as
reasons for which a student who is
eligible for title IV HEA assistance may
not be able to establish that status.
Other commenters asserted that the
Department’s proposed solutions for
those who have not completed a FAFSA
are flawed because the complexity of
the FAFSA and lack of available
information preclude such students
from simply filing the form to establish
eligibility. The commenters expressed
particular concern that the burden of
having to complete a FAFSA for the
purpose of obtaining a grant under the
HEERF programs will fall
disproportionately on low-income,
minority, and first-generation college
students who are most in need of the
funding.
Regarding the costs associated with
establishing title IV eligibility, some
commenters objected to the
methodology used by the Department to
estimate those costs. One of those
commenters asserted that the
Department did not consider the costs to
students who are eligible but have yet
to complete the FAFSA, which the
commenter characterized as extensive
based on data suggesting that requiring
these students to demonstrate eligibility

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by completing the FAFSA would result
in an additional 1,057,500 to 1,305,000
hours of student labor and $18,918,675
to $23,346,350 in additional costs to
those students. The same commenter
expressed the belief that the costs
associated with students completing an
institution-provided certification form
would be even higher because of the
uncertainty and confusion they would
experience in having to attest to their
own eligibility upon penalty of law.
Another commenter opined that the
added time for title IV eligible students
to provide documentation confirming
their eligibility (particularly during the
pandemic) will lead to increased costs
in the form of late or unpaid bills,
missed meals, and even eviction. The
same commenter’s assessment was that
the Department failed to consider how
a lack of access to emergency financial
aid might affect students facing
unprecedented financial challenges and
who are struggling with existing
institutional hurdles.
Discussion: The Department
acknowledges the difficulties many
students face in completing the FAFSA.
This difficulty is especially true for
under-resourced students. We are
persuaded that serious economic
hardships being experienced by these
students, which timely application of
HEERF funding might ameliorate,
would go unaddressed or even worsen
during the time needed for them to
confirm eligibility using the FAFSA.
Furthermore, we appreciate the
comment raising concerns about the
cost of student labor associated with
requiring students who are eligible for
title IV aid but did not apply, to
complete the FAFSA, or some other
institutionally designated form, in order
to establish eligibility for HEERF
funding. We also note that it would be
difficult if not impossible for
institutions to create their own form to
verify title IV financial aid eligibility.
Institutions would need to find ways to
verify items that the FAFSA already
handles, such as whether students have
valid Social Security numbers or are
otherwise eligible noncitizens, which
could mean checking with the Social
Security Administration or the
Department of Homeland Security.
Institutions would also need to ensure
male students had registered with the
Selective Service. However, since these
regulations remove the requirement
that, in order to receive HEERF funding,
a student who has not already done so
must establish title IV eligibility,
associating a cost with that burden is no
longer necessary. The Department notes,
however, that students who are
potentially title IV eligible must

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continue to file a FAFSA to establish
such eligibility, and that HEERF funding
should supplement, rather than replace,
title IV aid for those who qualify.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Harm to Historically Marginalized
Students
Comments: Many commenters
opposed the IFR’s restriction of
eligibility for grants under HEERF to
title IV eligible students on the grounds
that it would exclude large numbers of
students, including historically
marginalized and vulnerable students,
such as those who are undocumented,
have loans in default and are currently
enrolled in school, and students who
have not met institutional standards for
satisfactory academic progress. The
commenters stressed that these are
students who are trying to improve their
futures and who arguably need more
help, not less, to complete their college
education.
One commenter suggested that the use
of the title IV eligibility standard would
mean that students enrolled in
noncredit, short term or dual enrollment
programs, along with other students
who do not have a high school diploma
or equivalent, will not have access to
much-needed grants from HEERF funds
as they work to increase their skills and
prepare for employment. The
commenter noted that students enrolled
in noncredit, short term, and adult
education programs are more likely to
be nontraditional students, such as
adult learners, low-income students,
and those for whom English is not their
first language.
Discussion: We are persuaded that
restricting eligibility for grants from
HEERF funds to title IV eligible students
is unnecessarily injurious to
undocumented students as well as
others who are not eligible for title IV
aid, many of whom face economic and

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institutional obstacles that have only
been compounded by the pandemic.
The Department believes the interests
of postsecondary education, as well as
the country as a whole, are best served
by using every available resource to
ensure all students, regardless of
citizenship or immigration status, are
able to continue their studies through
the present crisis. Accordingly, we are
revising the rule established in the IFR
to clarify that a student is defined as any
individual who is enrolled in an eligible
IHE.
Regarding students enrolled in nonterm, short-term, and dual enrollment
programs, as well as students who do
not have a high school diploma, we note
that both short-term and dual
enrollment programs frequently are title
IV eligible programs. However, we
acknowledge that many students
enrolled in these types of programs and
many students who do not have a high
school diploma would not be eligible for
grants from HEERF funds under the
restrictions in the IFR.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Effect of the IFR on Veterans
Comments: One commenter expressed
the belief that the eligibility restriction
in the IFR will negatively affect veterans
who have risked their lives for the
country and implies that the
Department does not believe their
sacrifice merits access to educational
opportunities.
Another commenter identified several
problems with linking student eligibility
for CARES Act emergency grants to
FAFSA filing, especially for those
students at schools not already using
applications to distribute the aid; these
were:
• Requiring a FAFSA to demonstrate
title IV eligibility would exclude all
non-FAFSA filing student veterans,
service members, and their families and

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survivors from receiving CARES Act
grants unless they submit the FAFSA;
• Undergraduate student veterans are
less likely than nonveterans to file a
FAFSA and requiring them to do so is
an impractical and unnecessary added
step that would further complicate and/
or seriously delay the receipt of grants
from HEERF funds;
• Non-FAFSA-filing student veterans
are more likely to mistakenly conclude
they are ineligible for the grants when
they are excluded from a school’s wider
automatic distribution of the aid;
• The amount of time these students
may have to wait to receive their grants
because institutions must first create
and then make available a specific
application form would be increased;
and
• Additional, undue burden on
military-connected students will result
from requiring them to research their
institution’s application process, obtain,
complete, and submit the application.
The commenter recommended
returning to the Department’s original
April 9, 2020, guidance or making
servicemembers, veterans, and their
dependents automatically eligible as
two potential solutions.
Discussion: We are persuaded that
restricting eligibility for grants from
HEERF funds to title IV eligible students
is, for reasons including those identified
by the commenters, potentially harmful
to the educational interests of veterans.
With respect to the commenter’s
proposed solutions, the revised
definition of ‘‘student’’ in these final
regulations, extending eligibility for
grants from HEERF funding to all
enrolled students, obviates the need for
any regulatory action specific to
veterans. In this final rule, we are fully
explaining our reasoning for revising
our position on title IV eligibility as a
prerequisite for HEERF funds, as
recommended by the commenter.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.

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Undocumented Students Entitled to
HEERF Funds
Comments: Several commenters
expressed the opinion that
undocumented students are as entitled
to grants from HEERF funds as any other
students. The commenters variously
cited the taxes paid by undocumented
students and their families, their
passion for education, their overall
contributions as members of society,
including as health care providers and
essential workers, and the reality that
their need for assistance during the
pandemic is no less than that of other
students in support of the premise that
all students should have access to
HEERF funds without reference to
citizenship or immigration status.
Some commenters asserted that
undocumented students and their
families have, in fact, been
disproportionately affected by the
pandemic and, therefore, merit the
greatest assistance, especially since
these students do not qualify for title IV
Federal student aid.
Other commenters stressed the
possibility that, denied this assistance,
many undocumented students will be
unable to complete their education, an
outcome that, in addition to limiting the
prospects of students forced to drop out,
has negative implications for the
economy.
A few commenters advocated for the
inclusion of undocumented students on
ethical grounds, arguing that it is
unethical to exclude students from
eligibility due to immigration status.
Finally, some commenters addressed
the effects on institutions of excluding
undocumented students from eligibility
for grants from HEERF funds. The
commenters stressed that that the
operating deficits and risk of closure
faced by institutions as a result of the
COVID–19 pandemic will be increased
as undocumented students are forced to
withdraw due to lack of funding.
Reduced diversity on campuses is
another negative outcome the
commenters suggested may occur as
undocumented students leave
institutions that they do not have the
financial resources to continue
attending.
Discussion: We agree with the
commenters that students who are
ineligible for title IV aid are no less
deserving of HEERF funding than title
IV eligible students. In the absence of
any statutory provision specifically
restricting the eligibility of students for
HEERF funds on the basis of
citizenship, immigration status, or other
factors, we do not believe that such a
restriction should be applied. In their

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capacity as students, undocumented
persons, like all postsecondary students,
pursue degrees, obtain employment
commensurate with their educational
attainment and in doing so contribute to
the greater good of the economy and
society as a whole. The Department has
been persuaded, therefore, by the public
comments received that there is no good
policy reason to treat them differently
for the purposes of eligibility for HEERF
funding and, in fact, every reason to
treat them the same.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Congressional Intent
Comments: Several commenters
asserted that the absence of any
language in the CARES Act restricting
eligibility for HEERF funding to title IV
eligible students is evidence that
Congress had no intention of imposing
such restrictions and that the IFR is,
therefore, in violation of the intent and
sprit of the CARES Act.
Several commenters offered that
where Congress did mean to restrict
relief funds made available through the
CARES Act based on immigration
status, they did so explicitly, i.e.,
recovery rebates, and that this is not the
case for the CARES Act relief grants.
Yet another commenter expressed the
belief that the Department’s
interpretation is an arbitrary and
capricious administrative action that
fails to consider the real-world
implications of denying critical relief
funds to thousands of students during a
global pandemic.
Discussion: We agree that a plain text
reading of the CARES Act language
indicates no intent on the part of
Congress to restrict eligibility for grants
from HEERF funds to title IV eligible
students. Moreover, we find the
argument that, where Congress intended
to restrict funds authorized by the
CARES Act it did so explicitly, supports
that conclusion that the lack of such

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restrictive language with respect to
HEERF funding reflects that Congress
intended all students to be eligible for
HEERF funds. Finally, while disagreeing
with the commenter who characterized
the Department’s actions as arbitrary
and capricious, we are persuaded that
restricting eligibility for grants from
HEERF funds to title IV eligible students
does not give proper consideration to
the effect on undocumented students of
denying them a source of funding
during the pandemic, nor did it reflect
Congress’s decision not to place
eligibility limits on HEERF funds that it
placed on other funds.
Changes: We are removing the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Waste, Fraud, and Abuse
Comments: Several commenters were
critical of what they characterized as the
Department’s assertion that the IFR was
promulgated chiefly to prevent fraud,
waste, and abuse. One commenter
referenced the Department’s citation of
a New York Times article in support of
its actions, observing that the
Department quoted the article out of
context and that, as the article
concerned an overseas fraud ring using
U.S. citizens’ personally identifiable
information to file unemployment
claims, it was, in any case, not germane.
Another commenter averred there is
no evidence that, without this rule,
institutions will engage in rampant
wasteful, fraudulent, or abusive
distribution procedures, as the
Department alleges.
Noting that none of the Department’s
prior communications related to the
pandemic expressed concerns over
fraud, one commenter expressed
bemusement over the IFR’s singular
focus on that possibility. The
commenter further offered that since,
according to a National Association of
Student Financial Aid Administrators
survey as of June 12, 2020, 94 percent
of institutions reported having made

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CARES Act emergency grants and more
than three-fourths of those institutions
had spent more than half of their
allocations by that point, the impact of
the Department’s effort to limit fraud by
restricting eligibility for HEERF funds
would be negligible. Lastly, this
commenter argued that institutional
reporting requirements are intended to
hold institutions accountable for how
they spend these funds and to prevent
fraud and abuse and make the
imposition of new eligibility
requirements unnecessary.
A few commenters took issue with the
Department’s assertion that institutions
could use HEERF funds to:
• Incentivize the reenrollment of
students who did not meet SAP
requirements, for the purpose of
enhancing revenue;
• Use HEERF funds for students who
are enrolled at the institution but do not
intend to receive a degree or certificate,
thereby diverting funds from students
who are pursuing a degree or certificate
in an eligible program; and
• Create cheap classes and
programming offering little or no
educational value with the intention of
using HEERF grant funding to
incentivize the enrollment of students
who are not eligible for title IV financial
assistance.
The commenters noted that, for
students failing to meet SAP, an
institution could always restore those
students’ eligibility by granting a SAP
appeal based on extenuating
circumstances or determining their
failure to make SAP to be the result of
COVID–19 related circumstances. They
also noted that, while it is true
institutions could award HEERF funds
to non-degree seeking students, the
Department failed to show how (in the
absence of any requirement in the
CARES Act for a student to be degree
seeking) that constitutes fraud, waste, or
abuse. As concerns cheap classes of
little educational value offered with the
sole intent of enrolling students who are
not eligible for title IV, the commenters
suggested that such students would be
less likely to enroll in these types of
classes than would title IV recipients
due to the need for them to fund a
greater share of the cost from their own
resources.
Discussion: Upon further review, we
agree with the commenters that any
potential for fraud, waste, and abuse
would not be affected by restricting
eligibility for grants from HEERF funds
to title IV eligible students. While the
Department always has an obligation to
distribute funds as appropriately as
possible and continues to have an
obligation to prevent waste, attention to

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which is monitored by the Department’s
Office of the Inspector General, a
reconsideration of the entirety of the
situation has led us to the conclusion
that the title IV eligibility restriction on
HEERF funds is not a necessary measure
to prevent waste in this case, and that
the importance of distributing these
funds to eligible students who need
them do not substantially affect any
such concerns. In addition, earlier in
this preamble, we note other
requirements already in place to address
such concerns. As has already been
stated elsewhere in this document, the
Department is persuaded that the sole
eligibility consideration for grants made
from HEERF funding is that a student be
enrolled in an eligible institution. We
believe this position is entirely
consistent with the language of the
CARES Act.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we have removed the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocated the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Personal Responsibility and Work
Opportunity Reconciliation Act of 1996
(PRWORA) 8 U.S.C. 1611 and HEERF
Funding
Comments: Numerous commenters
challenged the Department’s assertion
within the IFR that 8 U.S.C. 1611, which
was enacted as part of the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA),
‘‘clearly’’ applies to restrict the HEERF
Emergency Financial Aid grants to
students as both wrong and ‘‘irrelevant
to the legality’’ of the IFR. Commenters
asserted that HEERF funds are not
Federal public benefits under PRWORA
and cited the decision in Oakley v.
DeVos, No. 4:20–cv–03215–YGR, ECF
No. 44, which rejected the Department’s
arguments that 8 U.S.C. 1611(a)
prevented undocumented students from
receiving this aid. In its decision
granting a preliminary injunction, the
Oakley court stated that grants under
HEERF do not fit the description of a
‘‘Federal public benefit’’ as defined at 8

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U.S.C. 1611, and thus, the associated
restrictions should not prevent
undocumented students from receiving
aid. The commenters thus assert that all
students should have access to HEERF
funds regardless of whether they are a
citizen, noncitizen, or ‘‘qualified alien.’’
Many commenters opined that
Congress did not intend for 8 U.S.C.
1611’s eligibility restrictions on
nonqualified aliens to apply for
financial assistance under the HEERF
programs. Noting legislators’ statements
about giving schools discretion and
flexibility, commenters believed that the
legislative record demonstrates
Congress’s intention to grant
educational institutions wide latitude in
determining how to use HEERF to assist
all students whose education was
disrupted by the crisis and who were in
need. Commenters stated that Congress
was explicit in other sections of the
CARES Act when it wanted to exclude
certain classes of immigrants from
receiving benefits even with the
provisions of 8 U.S.C. 1611;
underscoring that it is significant that
Congress did not explicitly identify
immigrant classes to exclude from
receiving HEERF grants where it did
elsewhere in the CARES Act.
Commenters argued that the canon of
statutory construction where specific
instructions from Congress override
more general ones dictates that the
CARES Act overrides 8 U.S.C. 1611.
See, e.g., RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645
(2012) (‘‘[I]t is a commonplace of
statutory construction that the specific
governs the general.’’) (quoting Morales
v. Trans World Airlines, Inc., 504 U.S.
374, 384 (1992)). Commenters stated
that, in the CARES Act, Congress
specifically provided for funding to
IHEs based on a precise formula
accounting for all non-distance learning
students, including nonqualified alien
students, which is evidence that
Congress intended for nonqualified
alien students to also be eligible to
receive financial assistance under the
HEERF programs. 134 Stat. at 567
(section 18004(a)). Commenters again
cited the Oakley court ruling that it
would defy common sense for certain
students to be counted in the
calculation of institutions’ allocations
under the HEERF and yet denied access
to the emergency aid share of those
allocations. Thus, since nothing in the
CARES Act suggests that Congress
intended section 1611’s general
provisions to apply to the ‘‘narrow,
precise, and specific subject’’ of COVID–
19 emergency relief, Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153
(1976) (‘‘Where there is no clear

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intention otherwise, a specific statute
will not be controlled or nullified by a
general one, regardless of the priority of
enactment.’’ (quoting Morton v.
Mancari, 417 U.S. 535, 550–51 (1974))),
the CARES Act overrides 8 U.S.C. 1611.
Commenters also argued that the
purpose of the CARES Act is highly
specific, responding to a once-in-acentury pandemic with a one-time
infusion of cash. By contrast, section
1611 is part of PRWORA, which is a
general statute written in general terms
and the purpose of restricting
immigrants’ access to Federal public
benefits under PRWORA was to ensure
that ‘‘aliens within the Nation’s borders
[would] not depend on public resources
to meet their needs,’’ prevent public
benefits from constituting ‘‘an incentive
for immigration to the United States,’’
and lessen the burden on the public
benefits system. See Public Law 104–
193, 110 Stat. 2260 (1996); see also H.R.
Rep. No. 104–651, at 3 (1996) (PRWORA
intended to ‘‘limit lifetime welfare
benefits’’). Restricting nonqualified
alien students’ access to student grants
provided under the HEERF programs
does not achieve any of these goals
because the HEERF programs are not
welfare or continuous benefit programs.
Rather, the HEERF programs are a onetime funding allocation that can be used
to provide current college students with
short-term relief for expenses already
incurred due to a national emergency.
Thus, allowing all full-time immigrant
students not previously enrolled in
distance education courses to be eligible
for these funds does not increase these
individuals’ dependence on public
benefits, encourage immigration to the
United States, or burden the public
benefits system.
Regarding 8 U.S.C. 1611(a)’s
‘‘notwithstanding’’ clause, commenters
opined that notwithstanding clauses can
be overridden by other statutory
indicators and courts have long noted
that when there is evidence that two
statutes potentially conflict, a laterenacted, more specific provision
governs, even if Congress did not
explicitly identify it as an exception to
the earlier statute. Commenters stated
that the CARES Act’s specific,
comprehensive statutory scheme
controls over a general
‘‘notwithstanding’’ of an earlier enacted
law and that the CARES Act ‘‘must
govern because it is the most recent
indication of Congress’s intent,’’ even
though ‘‘the earlier statute contained a
‘notwithstanding’ clause and the more
recently enacted statute did not.’’ See
GP–UHAB Hous. Dev. Fund Corp. v.
Jackson, No. 05 Civ. 4830, 2006 WL
297704, at *9 (E.D.N.Y. Feb. 7, 2006)

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(citing In re Ionosphere Clubs, Inc., 922
F.2d 984, 991 (2d Cir. 1990) (‘‘[W]hen
two statutes are in irreconcilable
conflict, we must give effect to the most
recently enacted statute since it is the
most recent indication of congressional
intent.’’)). Commenters also noted that
the Oakley court rejected the
Department’s ‘‘notwithstanding’’
argument, finding that the specific, onetime disbursement of HEERF is not
subject to the general prohibition in
PRWORA.
Additional commenters stated that the
nature of HEERF funds as a ‘‘community
benefit’’ put them entirely outside the
realm of Federal public benefits that
Congress sought to control under
PRWORA. These commenters note that
section 18004 of the CARES Act did not
restrict eligibility for any particular set
of individuals, but rather gives
discretion to colleges to decide which
students are prioritized in receiving
HEERF funds. Thus, although some
benefits, specifically emergency
financial aid grants, are redirected to
students, the HEERF funds themselves
are entirely provided directly to colleges
to deal with the effects of the COVID–
19 pandemic. The commenters
contended that, therefore, the HEERF
programs can be viewed as community
funds under a Department of Health and
Human Services (HHS) Interpretation of
‘‘Federal Public Benefit,’’ 63 FR 41658
(Aug. 4, 1998). In this interpretation,
HHS stated that under 8 U.S.C.
1611(c)(1)(B), a Federal public benefit is
a benefit provided to individuals under
an ‘‘authorizing statute [that] . . .
mandate[s] ineligibility for individuals
. . . that do not meet certain criteria.’’
Thus, even if some benefits flow
directly to individuals under the
program, the benefits should not
necessarily be considered ‘‘Federal
public benefits’’ when the program as a
whole is more readily categorized
instead as community funds. A
commenter made a related point that
Congress created HEERF funding to
serve as a community benefit rather
than a Federal public benefit, as it
recognized that colleges and universities
would be best situated to understand
and respond to the complex and
localized needs of their educational
communities.
Other commenters stated that,
although certain classes of immigrants
are excluded from receiving ‘‘Federal
public benefits,’’ which generally
include ‘‘postsecondary education’’
benefits, there are statutory exceptions
and subsequent agency interpretations
which indicate that short-term
emergency aid of the sort that HEERF
provides should not be treated as a

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‘‘Federal public benefit.’’ See 8 U.S.C.
1611(b)(1)(B) (providing an exception
for Federal Public Benefits considered
to be ‘‘[s]hort-term, non-cash, in-kind
emergency disaster relief’’). Thus,
commenters believed that, since the
HEERF programs were enacted in
response to an emergency to deliver
short-term assistance, as acknowledged
by the Oakley court, HEERF aid should
not be treated as a ‘‘Federal public
benefit.’’ Another commenter stated that
the Office of the Attorney General has
previously clarified that ‘‘programs,
services, or assistance necessary for the
protection of life or safety’’ are not
Federal public benefits for purposes of
8 U.S.C. 1611(a).
Some commenters argued that,
although the Department asserted that
the CARES Act funds constitute a
‘‘postsecondary education . . . benefit,’’
Congress did not intend that the CARES
Act student grants be considered
‘‘postsecondary education . . .
benefit[s]’’ under 8 U.S.C. 1611. Rather,
by its own terms, the Act requires
higher education institutions to provide
‘‘emergency financial aid grants to
students for expenses related to the
disruption of campus operations due to
coronavirus (including eligible expenses
under a student’s cost of attendance,
such as food, housing, course materials,
technology, health care, and child
care).’’ Commenters further argued that
section 18004’s use of ‘‘cost of
attendance,’’ which has a technical
meaning in the HEA, does not signal a
legislative intent to limit aid to students
eligible to receive Federal student aid
and that the listing of non-educationrelated expenses, including food,
housing, and child care suggests that
lawmakers intended that the CARES Act
provide aid to students to help them
survive—a goal applicable to citizen and
noncitizen students alike that goes
beyond ‘‘postsecondary education . . .
benefit[s].’’
Commenters further contended that
the Department’s argument that 8 U.S.C.
1611’s applicability to HEERF funds
justifies the further application of title
IV eligibility restrictions to the HEERF
funds conflicts with section 1611’s
purpose. Commenters said that even if
HEERF funds are Federal public benefits
that Congress intended to fall within 8
U.S.C. 1611(a)’s eligibility restrictions,
section 1611’s scope only reaches
nonqualified aliens’ access to Federal
public benefits. Commenters stated that
the rule goes much further than section
1611 and limits certain categories of
U.S. citizen students from also receiving
HEERF grants, including those with
certain criminal convictions,
unsatisfactory academic standing, or

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without a high school diploma. The
commenters further believed that,
although PRWORA provides no support
for barring U.S. citizen students from
receiving financial assistance the
HEERF programs, the IFR also has the
effect of barring citizens who did not fill
out the FAFSA, including veterans who
use the Montgomery GI bill, from
receiving financial assistance under the
HEERF programs.
Discussion: We now agree with the
commenters’ reasoning that Congress
did not intend for PRWORA to apply to
HEERF funds to students.
In issuing the IFR, the Department
stated its assumption that 8 U.S.C. 1611
applied to the HEERF funds provided to
students. Several courts disagreed with
the Department’s assumption that
PRWORA applied to the CARES Act
funds and, as noted within the
comments section above, the
Department received many public
comments challenging this assumption
as to the applicability of PRWORA.
With the benefit of those decisions and
the public comments, and upon further
review, the Department now concludes
that the term ‘‘student’’ in section 18004
of the CARES Act include
undocumented immigrants. Congress
used the term ‘‘student’’ in section
18004 to refer to all enrolled students at
an institution when it set out the
formula for allocating HEERF funds
among schools. See Section
18004(a)(1)(B) (basing calculation of
each institution’s funding on ‘‘full-time
equivalent students’’). And the
Department has consistently recognized
that nonqualified aliens are counted for
purposes of allocating HEERF funds
under the formula Congress established,
because the plain meaning of the
formula provided by Congress would be
read to include all students, and there
are no indicators that Congress intended
the Department to exclude nonqualified
aliens when arriving at these formula
allocations. See also ‘‘Methodology for
Calculating Allocations per Section
18004(a)(1) of the CARES Act’’ (https://
www2.ed.gov/about/offices/list/ope/
heerf90percentformulaallocation
explanation.pdf). Further, Congress
used the term ‘‘student’’ in section
18002, section 18003, and section 18005
to refer to beneficiaries of ESEA
programs, which may unquestionably
benefit undocumented immigrants and
other students without a qualifying
immigration status for purposes of
section 1611. See H.R. Conference
Report No. 104–725 at 380 (1996)
(PRWORA conference report, stating
that it was ‘‘[t]he intent of the
conferees’’ that ESEA programs ‘‘not be
affected by’’ section 1611). As courts

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have noted, and as explained in greater
detail below, there is a strong
presumption that the statutory term
‘‘student’’ has the same meaning
throughout the HEERF provision and
the CARES Act, which means
nonqualified aliens are included as
students in the eligibility provision as
well. Additionally, other aspects of the
CARES Act reinforce the conclusion:
Section 2201 expressly excluded nonqualified aliens (albeit in a different
context), whereas there is no such
exclusion in the HEERF provision. And
interpreting ‘‘students’’ in the HEERF
provision as including aliens furthers
the purpose of the HEERF grants
without impairing the objective of 1611,
which is to avoid having Federal public
benefits induce unlawful immigration.
Subsequent to the comment closing
period for the IFR on July 17, 2020, the
Department received two decisions
regarding the applicability of 8 U.S.C.
1611 to HEERF program funds. In
Noerand v. Devos, Civil No. 20–11271–
LTS (D. Mass. Jul. 24, 2020), plaintiffstudent Noerand challenged the
Department’s exclusion of certain noncitizens such as Noerand from receiving
any benefits under the CARES Act. The
Noerand court found that the HEERF
programs, as originally enacted through
the CARES Act, ‘‘constitutes a statutory
exception to Section 1611’s general
denial of federal public benefits.’’ As
such, that court granted the preliminary
injunction sought by Noerand, which
enjoined the Department from excluding
Noerand from receiving benefits under
the CARES Act. This decision was
expanded upon through Massachusetts
v. Dept of Education, Civ Action # 1:20–
1600 (D. Mass., Sept. 3, 2020), which
adopted the reasoning of the Noerand
court and enjoined the Department’s IFR
as to ‘‘any institution of higher
education in the Commonwealth of
Massachusetts and as to any student
attending a school that is located within
the Commonwealth of Massachusetts.’’
While the Noerand and Massachusetts
decisions were not able to contribute to
the comments the Department received
in the IFR as a result of the time at
which these decisions were issued, we
are persuaded by the joint reasoning of
the courts in Oakley, Noerand, and
Massachusetts that the CARES Act’s
relationship to 8 U.S.C. 1611 represents
an instance where specific instructions
from Congress override more general
ones. See, e.g., United States v. Estate of
Romani, 523 U.S. 517, 532 (1998)
(holding that more specific statute
governs). As noted in Noerand, as the
Supreme Court has explained, ‘‘it is a
commonplace of statutory construction

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that the specific governs the general.’’
Noerand v. Devos, 474 F. Supp. 3d 394,
403 (D. Mass. 2020) (quoting Morales v.
TWA, 504 U.S. 374, 384 (1992)). In this
case, Congress’s provision of financial
aid grants to all students in response to
the coronavirus pandemic represents a
specific policy goal. Upon further
consideration, we believe that the
comprehensive, specific object of the
CARES Act represents a clear intent to
override other, more general statutes,
such as 8 U.S.C. 1611’s more general
goal of providing for a long-term limit
on Federal public benefits. This specific
intent is made clearer by the fact that
Congress was clear in other parts of the
CARES Act where it did not intend for
noncitizens to share in this emergency
funding. Compare CARES Act section
2201 (‘‘Recovery Rebates for
Individuals’’) (explicitly noting
nonresident aliens ineligible for
recovery rebates for individuals) with
section 18003(d)(8) (explicitly
specifying subset of elementary and
secondary school emergency relief
funds could be used to ‘‘provide meals
to eligible students’’ or ‘‘technology for
online learning to all students’’)
(emphasis added).
We are also persuaded that the
‘‘notwithstanding’’ clause in 8 U.S.C.
1611 is overridden by the clear and
manifest intent in the CARES Act. We
note that the Oakley court highlighted
the long-standing Supreme Court and
Ninth Circuit precedent holding that a
later, more specific statement may take
priority over an earlier, broader
statutory provision, even if it is prefaced
by a ‘‘notwithstanding any other laws’’
clause. See RadLAX Gateway Hotel, LLC
v. Amalgamated Bank, 566 U.S. 639,
645 (2012) (relying on long-standing
canon of construction that a more
specific provision is construed as an
exception to a general one); Oregon Nat.
Res. Council v. Thomas, 92 F.3d 792,
796 (9th Cir. 1996) (limiting
‘‘notwithstanding any other law’’ clause
to relevant categories of other law,
stating ‘‘[w]e have repeatedly held that
the phrase ‘notwithstanding any other
law’ is not always construed literally.’’)
The Department now agrees that the
specific, one-time emergency
disbursement of HEERF assistance in
the CARES Act is not subject to the
more general prohibition in the earlier
statute and is properly governed by this
precedent. Section 18004 of the CARES
Act is a specific statutory enactment in
which Congress unambiguously
directed certain aid to a plainly
described group of people, ‘‘students,’’
without qualification. Thus, in these
circumstances, it would constitute a

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statutory exception to section 1611’s
general denial of Federal public
benefits.
In addition, as noted elsewhere, the
Department is particularly compelled by
the fact that Congress was explicit in
other provisions of the CARES Act as to
which categories of individuals should
be ineligible to participate in various
relief programs. See, e.g., CARES Act
section 2102(a)(3)(B) (specifically
excluding two categories of workers
from Pandemic Unemployment
Assistance); section 2107(a)(2)
(establishing eligibility criteria for the
13 additional weeks of Unemployment
Insurance); and section 2201(a)
(specifically excluding) nonresident
aliens from Recovery Rebates for
Individuals). ‘‘[W]here Congress
includes particular language in one
section of a statute but omits it in
another section of the same Act, it is
generally presumed that Congress acts
intentionally and purposely in the
disparate inclusion or exclusion.’’
Gozlon-Peretz v. United States, 498 U.S.
395, 404 (1991) (citation omitted). As
mentioned supra, we note that the
CARES Act section 2201(a), authorizing
$1,200 payments to individuals,
specifically excluded ‘‘nonresident alien
individuals’’ from eligibility. That
Congress specifically included language
to exclude noncitizens from eligibility
for individual rebate funds, but did not
include specific language to exclude
noncitizens from eligibility for student
grants provided under the HEERF
programs, indicates that the omission
was intentional. Gozlon-Peretz, 498 U.S.
at 404.
We also heed the Oakley, Noerand,
and Massachusetts courts’ individual
findings that under the Department’s
initial interpretation of the CARES Act,
subsections (a) and (c) of section 18004
would give two different meanings to
the term ‘‘students,’’ where subsection
(a) would include all students for
purposes of funding allocation and
subsection (c) would exclude non-title
IV eligible students for purposes of
student distributions. The Department
now agrees that such an interpretation
is not the best reading of the statute in
light of fundamental tenants of statutory
interpretation. See Los Angeles v. Barr,
941 F.3d 931, 941 (9th Cir. 2019)
(‘‘Under the normal rule of statutory
construction, we presume that identical
words used in different parts of the
same act are intended to have the same
meaning.’’) (internal quotation marks
omitted). Based on these principles, we
agree that the term ‘‘students’’ in section
18004(c) governing HEERF Student
Assistance must have the same meaning
as the term ‘‘students’’ in section

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18004(a)(1)(B) governing the HEERF
funding formula. This view is buttressed
by the decision in Noerand, which
noted that ‘‘Congress’s use of the word
‘students’ in section 18004
unambiguously evinces an intent to
encompass all students without regard
to their immigration status or eligibility
for Title IV funding.’’ Additionally, we
note that Congress directed IHEs within
CRRSAA and ARP to prioritize making
‘‘grants to students with exceptional
need[.]’’ See CRRSAA section 314(c)(3);
ARP section 2003. As noted elsewhere
within this final rule, students who are
ineligible for title IV aid, are among
those with exceptional needs. This later
in time directive that institutions use
CRRSAA and ARP funds to prioritize
students with exceptional needs is
further evidence that Congress sought to
carve out an exception to 8 U.S.C. 1611
for the purposes of the HEERF
programs.
While the Department believes that
the CARES Act student grants are
‘‘postsecondary education . . .
benefit[s]’’ under 8 U.S.C. 1611 within
the basic sense of those words, as noted
elsewhere, we now believe the better
reading of the statute is that Congress’s
direction to higher education
institutions to provide ‘‘emergency
financial aid grants to students for
expenses related to the disruption of
campus operations due to coronavirus’’
within the CARES Act represents a later
in time exception to the general rule
that nonqualified aliens may not receive
Federal postsecondary benefits under
PRWORA (emphasis added). In reaching
this conclusion, the Department
distinguishes the court’s decision in
Washington as being the only decision
to find that PRWORA applied to HEERF
grants to students and having not
provided a detailed analysis of the other
places within the CARES Act where
noncitizens were specifically excluded
from eligibility for emergency relief, as
noted elsewhere within this discussion.
Upon further consideration, we agree
with the commenters’ argument that the
PRWORA’s purpose does not conflict
with that of the CARES Act student
grants, as the purpose of restricting
immigrants’ access to Federal public
benefits under PRWORA was to ensure
that ‘‘aliens within the Nation’s borders
[would] not depend on public resources
to meet their needs,’’ prevent public
benefits from constituting ‘‘an incentive
for immigration to the United States,’’
and lessen the burden on the public
benefits system. We further agree that
interpreting section 1611 as an implied
bar to who can access relief designed to
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prevent, prepare for, respond to, and
recover from an unprecedented public
health crisis that has affected every
sector of society would undermine the
very purpose of the CARES Act and the
HEERF programs.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we are removing the definition of
‘‘student’’ from the general provisions
regulations that apply to student
assistance under the title IV programs
and relocating the revised definition to
34 CFR part 677, which governs the
HEERF programs.
The Imposition of Title IV Eligibility
Restrictions on Grants to Students Is
Contrary to Congressional Intent
Comments: Many commenters
asserted that Congress intended all
students to have access to pandemic aid
relief, irrespective of title IV or
immigration status. These commenters
note that no provision within section
18004 of the CARES Act either explicitly
or implicitly incorporates title IV
eligibility restrictions. They stated that
the only explicit reference to title IV
occurs in section 18004(b), which
requires the Secretary to use the ‘‘same
systems’’ to distribute funding under the
HEERF programs as are used to
distribute title IV funds. However, these
commenters suggested that Congress
included section 18004(b) only for
purposes of efficiency and expediency
in administering funds to colleges.
Some commenters acknowledged that
certain provisions of the CARES Act
reference title IV eligibility, but argued
that the lack of incorporation of those
requirements into CARES Act section
18004(c) compels the inference that
Congress did not intend CARES Act
emergency relief grants to be limited in
the same way. One commenter
challenged the Department’s assertion
in the IFR that emergency grants should
be tied to the definition of the cost of
attendance in section 472 of the HEA,
noting that this definition applies to all
students, not just title IV recipients.
Another commenter stated that the
consumer information requirements in
section 485 of the HEA require
campuses to disclose ‘‘the cost of
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distinguishing between title IV-aided
students and non-recipients.
Several commenters challenged the
IFR’s assertion that section 18004(c) of
the CARES Act contains a ‘‘critical
ambiguity’’ by not adequately defining
the word ‘‘students.’’ These commenters
argued that no dictionary has defined
the word ‘‘students’’ to mean only those
with a title IV eligibility requirement;
neither is the common usage of the
word ‘‘students’’ restricted to those
eligible for title IV aid. Other
commenters noted that the second
component of the section 18004(a)(1)
allocation formula encompasses all
students, including the millions of
students who do not qualify for Pell
Grant support. As such, those
commenters argued that the
Department’s inclusion of just one part
of the institutional allocation formula as
justification for its interpretation of
student eligibility for emergency grants
makes no sense.
One commenter argued that another
internal inconsistency is that the IFR
applies title IV’s eligibility restrictions
while recognizing that the CARES Act
emergency assistance grants ‘‘by
definition, do not constitute Federal
financial student aid under the HEA,
including title IV of the HEA.’’ An
additional commenter stated that the
IFR as drafted would effectively create
a new title IV program. Other
commenters noted that the IFR would
effectively create multiple definitions of
‘‘student’’ within the CARES Act by first
defining it broadly when calculating
funding amounts for each IHE, see 134
Stat. at 567 (section 18004(a)), and then
defining it narrowly for which
‘‘students’’ are ultimately eligible to
receive HEERF grants, see id. at 568
(section 18004(c)). Still other
commenters noted an internal
inconsistency in the IFR disavowing
title IV’s requirements with respect to
certain procedural requirements under
sections 482 and 492 of HEA because
‘‘the rule does not relate to the delivery
of student aid under title IV.’’ As such,
several commenters argued that the
Department was not entitled to Chevron
deference in its interpretation.
Some commenters stated that the
Department’s conclusion that it would
not be logical for Congress to require
students to be eligible under section 484
of title IV of the HEA for grants under
section 18004(a)(3) of the CARES Act,
where part B of title VII of the HEA is
expressly referenced, but not for grants
under sections 18004(a)(1) and (2) of the
CARES Act. Commenters believed this
confuses means and ends given that
Congress in section 18004(d) directs the
Secretary to prioritize funds under

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section 18004(a)(3) for institutions that
did not receive sufficient funding under
section 18004(a)(1) and (2). In section
18004(a)(3) of the CARES Act,
lawmakers directed the Secretary to
make awards to institutions of higher
education that the Secretary determines
have the greatest unmet needs related to
coronavirus, which could be used for
‘‘grants to students,’’ among other uses.
In section 18004(c), commenters noted
that lawmakers went a different route,
allowing for provision of funds to
students by institutions in the form of
‘‘emergency financial aid grants’’
independent of a Federal financial aid
program. Commenters concluded that it
is far more logical to read these as
programs complementing each other
and intended to support students both
eligible to participate in title IV aid
programs and those not.
Discussion: Upon further review, we
believe the aforementioned principles of
statutory construction counsel against
reading any title IV restrictions into
‘‘student.’’ The definition of ‘‘student’’
we adopt in this final rule will avoid the
potentially inconsistent interpretations
of that term within the same statute
pointed out by commenters. The
Department is especially persuaded
that, given that the allocation for
institutions under CARES Act section
18004(a)(1) takes into account all
students, it would be incongruous to
read section 18004(c) to bar emergency
financial aid grants to a subset of those
very same students. This position is
supported by the legislative history of
the CARES Act. See, e.g., 166 Cong. Rec.
H1856 (daily ed. Mar. 27, 2020)
(statement of Rep. Underwood)
(remarking that the grants would
‘‘support college students whose
semesters were disrupted due to
COVID–19’’); id. at H1823 (daily ed.
Mar. 27, 2020) (statement of Rep. Scott)
(stating that the CARES Act would
‘‘support grants to displaced students’’)
(emphasis added).
After careful reconsideration, the
Department is also persuaded that
Congress did not intend to incorporate
title IV’s eligibility restrictions by
implication. The Department
acknowledges that, ‘‘[w]here Congress
includes particular language in one
section of a statute but omits it in
another section of the same Act, it is
generally presumed that Congress acts
intentionally and purposely in the
disparate inclusion or exclusion.’’
Gozlon-Peretz v. United States, 498 U.S.
395, 404 (1991) (citation omitted). While
the term ‘‘cost of attendance’’ does
appear within the CARES Act and has
continued into CRRSAA and the
American Rescue Plan (ARP), the

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Department agrees that this term is not
limited to the title IV context. Similarly,
the phrase ‘‘emergency financial aid
grants to students,’’ while appearing in
both the Federal Supplemental
Educational Opportunity Grant (FSEOG)
title IV program and HEERF section
18004(c), speaks to different activities
under distinct programs. We
acknowledge those commenters who
noted that Powerex Corp speaks to
‘‘identical words and phrases within the
same statute,’’ and does not apply when
two related statutes play different roles
in a common goal. Powerex Corp. v.
Reliant Energy Servs., Inc., 551 U.S. 224,
232 (2007). In this instance, the
Department has concluded that
Congress did not intend for FSEOG and
HEERF programs to play the same role.
Additionally, the Department believes
that this final rule is in keeping with the
changes to the HEERF program made
under CRRSAA and ARP, which direct
institutions to ‘‘prioritize grants to
students with exceptional need.’’ See
CRRSAA section 314(c)(3); ARP section
2003. The Department agrees with the
numerous commenters who provided
evidence to support that students who
are ineligible for title IV aid are among
those with exceptional needs. For
example, undocumented students and
their families are more likely to have
lower median incomes, limited access to
health insurance and care, and jobs that
do not allow them to work from home,
increasing their risk of infection.3 While
the term ‘‘exceptional need’’ does
appear within certain parts of the HEA
(as in the case of FSEOG, see HEA
section 413C(c)(2), and in school
Program Participation Agreement
requirements, see HEA section
463(a)(8)), the Department agrees that
Congress did not explicitly cross
reference either of those sources, and
neither have a unique definition that
could be readily imported into the
HEERF context. Rather, the language in
CRRSAA and ARP directing schools to
prioritize students with exceptional
need re-emphasizes that Congress
intended that schools have discretion to
determine who should receive funds,
including whether such grants should
go to title IV eligible students or not.
We also concur with the commenters
that the distribution of awards under
section 18004(a)(3) of the CARES Act
through ‘‘part B of title VII of the Higher
Education Act’’ that may be used ‘‘for
grants to students for any component of
the student’s cost of attendance (as
3 https://www.oecd.org/coronavirus/policyresponses/what-is-the-impact-of-the-covid-19pandemic-on-immigrants-and-their-childrene7cbb7de/.

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defined under section 472 of the Higher
Education Act)’’ was intended to
complement the distribution of
‘‘emergency financial aid grants’’ under
section 18004(c). As such, we find that
the overarching intent of these two
provisions was to support students,
whether or not they are eligible to
participate in title IV aid programs, and
that a more plain text reading of the
CARES Act leads to the conclusion that
the term ‘‘students,’’ means all students.
While as described below the
Department maintains that rulemaking
is warranted in this context, it now
agrees that imposing title IV eligibility
onto the HEERF grants to students
would contravene the statute’s purpose.
The Department recognizes that the
CARES Act was enacted to provide
rapid relief to students in order for them
to respond to their educational needs in
the wake of an unprecedented global
pandemic. The Department now agrees
that required verification of title IV
eligibility could impose unnecessary
delays in distributing funds to students,
which would run directly counter to the
overriding legislative purpose of this
funding.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under HEERF
programs. Because an individual is no
longer required to be title IV eligible to
receive a HEERF student grant, we are
removing the definition of ‘‘student’’
from the general provisions regulations
that apply to student assistance under
the title IV programs and relocating the
revised definition to 34 CFR part 677,
which governs the HEERF programs.
Constitutional Challenges to the
Application of Student Eligibility
Requirements
Comments: Some commenters
challenged the imposition of eligibility
requirements on the distribution of
CARES Act emergency relief grants as
being in violation of separation of
powers principles and the Spending
Clause. These commenters noted that
Federal funding to States may only carry
conditions that Congress has explicitly
imposed. Pennhurst State Sch. & Hosp.
v. Halderman, 451 U.S. 1, 17–18 (1981).
As such, these commenters advanced
the argument that ‘‘legislation enacted
pursuant to the spending power is much
in the nature of a contract’’ and that
‘‘[t]he legitimacy of Congress’s power to

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legislate under the spending power thus
rests on whether the State voluntarily
and knowingly accepts the terms of the
‘contract.’’’ Id. In this respect, the
commenters noted that IHEs were
required to sign a certification and
agreement in order to receive HEERF
money, but they were not given the
‘‘clear notice’’ required for exercises of
the spending power. Arlington Cent.
Sch. Dist. Bd. of Educ. v. Murphy, 548
U.S. 291, 296 (2006).
Discussion: The Department
maintains that the definition of
‘‘student’’ as revised in this final rule
does not exceed the Department’s
regulatory authority or otherwise violate
the Spending Clause or separations of
powers principles. While
acknowledging the restrictions inherent
in the Spending Clause, ‘‘Congress is
not required to list every factual
instance in which a state will fail to
comply with a condition. Such
specificity would prove too onerous,
and perhaps, impossible.’’ Mayweathers
v. Newland, 314 F.3d 1062, 1067 (9th
Cir. 2002). Here, the Department’s
rulemaking is ‘‘reasonably related to the
purpose’’ of the HEERF programs in
providing much needed direction to
institutions regarding which individuals
may receive financial aid grants under
the HEERF programs. New York v.
United States, 505 U.S. 144, 172 (1992).
We note that, while the definition of the
term ‘‘student’’ set forth in this final
rule is less restrictive than the one set
forth in the IFR, the Secretary has broad
authority to ‘‘make, promulgate, issue,
rescind, and amend rules and
regulations governing the manner of
operation of, and governing the
applicable programs administered by,
the Department.’’ 20 U.S.C. 1221e–3; see
id. section 3474 (‘‘The Secretary is
authorized to prescribe such rules and
regulations as the Secretary determines
necessary or appropriate to administer
and manage the functions of the
Secretary or the Department.’’). The way
in which this final rule aligns with this
rulemaking authority also is discussed
in further detail below.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we are removing the definition of
‘‘student’’ from the general provisions

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regulations that apply to student
assistance under the title IV programs
and relocating the revised definition to
34 CFR part 677, which governs the
HEERF programs.
No Delegation of Authority to the
Department
Comments: Several commenters
challenged the Department’s IFR as
being in excess of the rulemaking
authority delegated to the Department.
These commenters argued that section
18004 contains no evidence that
Congress intended to delegate
rulemaking authority to the Department.
Thus, these commenters stated that,
while Congress could have chosen to
delegate authority to the Department to
set eligibility criteria for the receipt of
grant funds, it did not. Other
commenters acknowledged that the
Department does hold general authority
to promulgate regulations governing the
programs it administers, 20 U.S.C.
1221e–3, but that the Department lacks
express authority in the context of the
CARES Act and that, ‘‘[s]uch a broad
interpretation would be antithetical to
the concept of a formula grant.’’ City of
Los Angeles v. Barr, 941 F.3d 931, 942
(9th Cir. 2019). Another commenter
stated that the Supreme Court has also
noted that a ‘‘clear basis’’ for delegation
is particularly important when the rule
directly concerns matters of ‘‘vast
economic . . . significance.’’ The
CARES Act ostensibly includes no
‘‘clear basis’’ for the delegation of the
authority that the Department assumes
through the promulgation of this rule.
As a result, these comments also argued
that the IFR would fail at ‘‘Chevron step
zero’’ for lacking a delegation of
authority to act in this manner.
Discussion: The Department
maintains its position that it has the
necessary authority to engage in
rulemaking with respect to the programs
that it administers, including the HEERF
programs. Specifically, as acknowledged
by some commenters, 20 U.S.C. 1221e–
3 confers on the Secretary the authority
to ‘‘make, promulgate, issue, rescind,
and amend rules and regulations
governing the manner of operation of,
and governing the applicable programs
administered by, the Department.’’ The
HEERF programs were clearly given to
the Department to administer, as
originally enacted in the CARES Act,
and continued through the additional
monies appropriated for these programs
within CRRSAA and ARP. For example,
the CARES Act appropriated funding
‘‘to carry out the Education Stabilization
Fund’’ (emphasis added), of which the
HEERF funds are a part. The primary
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18004(a)(1) of the HEERF program more
broadly provides that ‘‘the Secretary [of
Education] shall allocate funding,’’ thus
indicating that all funds in HEERF are
within the purview of the Department.
The final rule clarifies ambiguity as to
the administrative scope of coverage of
HEERF programs (i.e., timing of student
enrollment), so that institutions may
manage HEERF program funds
effectively and efficiently. In specifying
the administrative scope of that
coverage, the Department is guided by
the purpose of the HEERF grants to
students, which are to cover ‘‘expenses
related to the disruption of campus
operations due to coronavirus’’ under
the CARES Act and ‘‘for any component
of the student’s cost of attendance or for
emergency costs that arise due to
coronavirus’’ under CRRSAA and ARP.
This text provides the necessary
framework for the expenses for which
HEERF grants to students may be used
while leaving ambiguity as to what
point in time students must have been
enrolled in order to receive HEERF
funding. The Department is mindful
that many students who were enrolled
during the pandemic have been forced
to pause their education by
withdrawing, and that institutional debt
is one of the primary barriers to students
re-enrolling and finishing their
education.4 By adopting a definition of
‘‘student’’ that allows students who
were enrolled since the declaration of
the national emergency to receive
HEERF grants, the Department seeks to
provide clarity as to which students
may receive HEERF funding consistent
with Congressional intent.
The Department has authority to
interpret ambiguity in the statute. The
Supreme Court has emphasized that
‘‘[i]f Congress has explicitly left a gap
for the agency to fill, there is an express
delegation of authority. . . . Sometimes
the legislative delegation to an agency
on a particular question is implicit
rather than explicit.’’ See Chevron, 467
U.S. at 843–44, 104 S. Ct. at 2781–82.
In this instance, the Department’s use of
notice-and-comment rulemaking
procedures required by the
Administrative Procedure Act (APA), 5
U.S.C. 551, et seq., has allowed the
Department to receive important public
input on the burden that results from an
overly restrictive definition of ‘‘student’’
and has informed the Department’s
changes within this final rule. The
Department received several comments
as part of its notice and comment
process indicating that commenters
desired additional clarity on the
4 https://www.newamerica.org/education-policy/
reports/comeback-story/recommendations/.

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eligibility of students for HEERF grants
based on their enrollment status, while
some commenters advocated for an
expansive interpretation of which
students could be considered
‘‘enrolled.’’ These comments informed
and underpinned our regulating on the
relationship between eligibility and
student timing of enrollment.
Additionally, the revised definition of
‘‘student’’ in this final rule reflects our
current position that the text of the
statute (which uses ‘‘students’’ without
any qualification), viewed in context,
clearly speaks to all students, regardless
of immigration status. And although the
Department now believes Congress’s
intent is clear on this issue, it has
explained its position in this final rule
in light of the Department’s previous
assumption about the application of
section 1611 to HEERF funds, as well as
to address comments on the
applicability of section 1611. This final
rule thus clarifies that the unqualified
statutory term ‘‘students’’ means just
what it says—it encompasses all
students, regardless of immigration
status. And, because the statutory term
‘‘students’’ is clear on that issue, the use
of that term—as explained more fully
above—indicates that section 1611 does
not apply.
Therefore, the Department believes
that this final rule is consistent with the
APA and its rulemaking authority
granted by Congress.
Changes: None.
Notice and Comment; Delay of Effective
Date
Comments: Some commenters argued
that the Department’s grounds for
waiving notice and comment
rulemaking in the IFR were insufficient,
and therefore that the Department did
not fulfill its obligations under the APA.
Commenters disputed that the waiver
served the public interest. One
commenter claimed that the Department
did not explain how issuance of the IFR,
which made previous guidance
enforceable, would lead to quicker
distribution of HEERF funds, or how the
waiver was in the public interest. They
also pointed out that the Department’s
desire to make previous guidance on the
use of HEERF funds legally binding
cannot establish good cause, specifically
citing United States v. Reynolds, 710
F.3d 498 (3d Cir. 2013), for this purpose.
Commenters also noted that the IFR was
issued during pending litigation, which
one commenter pointed out called into
question the level of certainty it would
provide.
Commenters stated that the
importance of institutions properly
distributing the HEERF allocations and

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prevention of waste, fraud, and abuse
were insufficient causes for waiving
notice and comment rulemaking. They
said that grounds for the waiver were
undermined by the three-month period
between enactment of the CARES Act
and issuance of the IFR, and that the
Department could make such an
argument with respect to any funding it
administers. Commenters also pointed
to case law stating that a desire to
provide immediate guidance does not
constitute good cause. One commenter
said the Department failed to provide
evidence that the one-time emergency
HEERF funds would be subject to fraud
or waste.
Several commenters stated that the
current national emergency was also an
insufficient basis for the waiver. They
said that the length of time between the
CARES Act’s enactment and issuance of
the IFR, and the fact that guidance on
this topic was issued in April 2020, also
undermined this argument. They said
that any emergency was now of the
Department’s own making, which case
law holds is not justification for a
waiver of notice and comment
rulemaking. In fact, one commenter
pointed out that the need for public
comment was great, given the
expansiveness of the IFR and its effect
of denying emergency relief to students
during a pandemic and economic
recession.
In addition, commenters argued that,
for the same reasons they asserted the
Department did not have good cause to
waive notice and comment rulemaking,
it also did not have good cause to waive
the 30-day delayed effective date
required by the APA and Congressional
Review Act.
Finally, one commenter contrasted
the process for the associated
information collection with the process
for this IFR. They noted that, despite the
Department’s claims that it was acting
for reasons of urgency, it issued an
information collection request in
relation to its distribution of the HEERF
funds that was subject to a longer notice
and comment period (60 days) than the
IFR (30 days), which they claimed
suggested it treated the same set of facts
with different levels of urgency.
Discussion: We appreciate the
concerns raised by commenters on these
topics, including good cause to waive
notice and comment rulemaking and
delays of effective dates. However,
whether or not the IFR met the standard
for good cause to waive notice and
comment rulemaking, the Department
has now considered the comments
received in response to the IFR, and is
issuing this final rule which responds to
them. We greatly value those comments

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and appreciate the value that public
comment provides, especially with
respect to a rule of this nature. As
explained elsewhere throughout this
preamble, the Department is now, with
the benefit of comments received,
revising the rule set forth in the IFR to
better effectuate the purposes of the
CARES Act, as well as CRRSAA and
ARP. See Little Sisters of the Poor Saints
Peter & Paul Home v. Pennsylvania, 140
S. Ct. 2367, 2385 (2020).
With respect to the Department’s
information collection request, notice
and comment rulemaking under the
APA (5 U.S.C. 553) and information
collection approval process under the
Paperwork Reduction Act (44 U.S.C.
3501, et seq.) are separate processes.
The Department requested an
emergency clearance under the
Paperwork Reduction Act to allow for
the immediate collection of this
information. Following that, the public
was then provided the ability to
comment on the proposed burden
assessment through the standard
information collection process with
notice requesting comment being
published in the Federal Register.
However, in both instances, the
Department pursued the accelerated
procedures provided for in applicable
law, due to the exigency of the situation.
Changes: None.
Change in Policy; Arbitrary and
Capricious
Comments: Commenters argued that
the IFR was arbitrary and capricious
because it changed the Department’s
policy position without
acknowledgment or explanation, and
did not examine relevant data, consider
effects on students, or provide a
satisfactory explanation for the choices
it made. Commenters pointed out what
they viewed as various inconsistencies
between the IFR and previous
Department statements, including an
April 9, 2020, letter sent by Secretary
DeVos to college and university
presidents. They also referenced a
television appearance by Secretary
DeVos. More specifically, commenters
stated that the April 9, 2020, letter
indicated that each institution may
develop its own system and process for
determining how to allocate CARES Act
funds. Commenters pointed to the
Funding Certification and Agreement
issued by the Department, which they
said initially characterized individual
emergency financial aid grants as not
constituting Federal financial aid under
title IV of the HEA. According to one
commenter, this position was more
logical and consistent with the CARES
Act and other funding, but it was

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26623

reversed by the IFR without displaying
awareness of the change or explaining
it. Another commenter pointed to what
they said were other inconsistencies in
the way the Department interpreted or
applied different statutory sections,
including interpretations of section
18004(c), the application of 8 U.S.C.
1611, and the way funds were allocated
when compared with the eligibility
criteria.
Discussion: In these final regulations,
we are fully explaining our revision of
the position taken in the IFR. To the
extent this is a departure from our prior
policy, all changes are fully explained
as required by applicable case law,
including cases cited by commenters,
such as F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502 (2009), and
Encino Motorcars, LLC v. Navarro, 136
S. Ct. 2117 (2016). In addition, we
believe that the revisions and
explanations throughout this document
address the points raised by
commenters. As discussed above, the
revised definition of ‘‘student’’ also
resolves the disparity the commenter
referenced with respect to funding
allocation.
Changes: Changes are discussed in
applicable sections throughout this
preamble.
Comments: None.
Discussion: With respect to student
program eligibility, the current
definition of ‘‘student’’ in section 668.2
solely refers to the CARES Act. Given
the passage of CRRSAA and ARP, which
also allocate funds for the HEERF
programs, the Department believes that
this revised definition of ‘‘student’’
should encompass student eligibility for
these programs as well. Thus, the new
definition of ‘‘student’’ refers to student
eligibility for the CARES Act, CRRSAA,
and ARP under the umbrella of the
HEERF programs. We also have added
the phrase ‘‘financial aid grants to
students’’ as one of the specific
purposes for which ‘‘student’’ is defined
because that language was introduced in
section 314(c) of CRRSAA.
Changes: We have removed the
requirement that a student must be
eligible for title IV aid to receive
financial assistance under the HEERF
programs and clarified in the definition
of ‘‘student’’ that any individual who is
or was enrolled at an eligible institution
on or after the date the national
emergency was declared for COVID–19
may qualify for assistance under the
HEERF programs. Because an individual
is no longer required to be title IV
eligible to receive a HEERF student
grant, we are removing the definition of
‘‘student’’ from the general provisions
regulations that apply to student

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assistance under the title IV programs
and relocating the revised definition to
34 CFR part 677, which governs the
HEERF programs.
Waiver of Notice and Comment
Rulemaking and Delayed Effective Date
Under the Administrative Procedure
Act
This final rule defines ‘‘student’’ for
purposes of the HEERF programs, which
include funding from the CARES Act,
CRRSAA and ARP. Congress enacted
the CARES Act, as well as CRRSAA and
ARP, to help the nation cope with the
urgent economic and health crises
created by the COVID–19 pandemic and
created the HEERF programs to provide
emergency financial aid grants to
students. CRRSAA and ARP build on
the framework for HEERF programs
originally created by the CARES Act by
allocating money into the same
programs, and it is logical to apply the
same definition of ‘‘student’’ for
provisions in those two statutes as for
the CARES Act. We believe that the
public would reasonably have
anticipated that this final rule would
apply to all HEERF funding. In addition,
the purpose of notice and comment has
been fulfilled in this case. Here, the IFR
‘‘adequately frame[d] the subjects for
discussion.’’ Nat’l Rest. Ass’n v. Solis,
870 F. Supp. 2d 42, 51 (D.D.C. 2012)
(quoting Conn. Light & Power Co. v.
Nuclear Reg. Comm’n, 673 F.2d 525,
533 (D.C. Cir. 1982)). Application of
these rules to CRRSAA and ARP
funding was a reasonable development
of the original proposal. See id. Further,
the Department has responded to the
public comments received in response
to the IFR in this final rule, and the
position taken in this final rule with
respect to CRRSAA and ARP funding is
consistent with the position many
commenters advocated with respect to
the CARES Act.
Nevertheless, out of an abundance of
caution and because CRRSAA and ARP
were enacted after the closing of the
public comment period for the IFR, we
are including this waiver of rulemaking
in this final rule. We believe that, in the
event the inclusion of CRRSAA and
ARP is not a logical outgrowth, such
waiver is both justified and necessary,
based on the circumstances.
In light of the urgent economic
challenges facing many students as a
result of the crisis, the Department has
determined that there is good cause for
promulgating this final rule without
additional notice and comment and that
it would be contrary to the public
interest to engage in notice and
comment rulemaking. The public
comments summarized throughout this

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preamble underscore the importance of
this aid to students. For example, as
noted earlier in this preamble, the
Department now agrees with the
numerous commenters who provided
evidence to support the conclusion that
students who are ineligible for title IV
aid are among those with the most
exceptional needs. This final rule will
enable institutions to distribute these
emergency funds to all eligible students
in an expedient manner. Delay of these
critical funds to engage in notice and
comment rulemaking would be directly
contrary to the public interest at issue,
addressing exigent need due to the
national pandemic.
Under the APA (5 U.S.C. 553), the
Department generally offers interested
parties the opportunity to comment on
proposed rules. However, the APA
provides that an agency is not required
to conduct notice and comment
rulemaking when the agency, for good
cause, finds that notice and public
comment thereon are impracticable,
unnecessary, or contrary to the public
interest (5 U.S.C. 553(b)(B)). While we
are responding to public comments
received in response to the IFR in this
final rule, we also believe that, if
needed, a waiver of notice and comment
rulemaking with respect to this final
rule is warranted by the circumstances
and is appropriate to encompass the full
scope of the final rule. In light of the
current national emergency and the
importance of institutions distributing
as quickly as possible the HEERF
allocations, including those from
CRRSAA and ARP, via emergency
financial aid grants to students to help
with their expenses related to the
disruption of campus operations due to
COVID–19, the normal rulemaking
process would be impracticable and
contrary to the public interest.
Therefore, we believe that good cause
exists for waiving the notice and
comment requirements of the APA.
The Department is not required to
conduct negotiated rulemaking for this
rule. The requirement in HEA section
492 that requires the Department to
obtain public involvement in the
development of proposed regulations for
title IV of the HEA does not apply to
this final rule, because it implements
the CARES Act, not title IV. Moreover,
even if it did apply, section 492(b)(2) of
the HEA provides that negotiated
rulemaking may be waived for good
cause when doing so would be
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Section 492(b)(2)
of the HEA also requires the Secretary
to publish the basis for waiving
negotiations in the Federal Register at
the same time as the regulations in

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question are first published. Even if
section 492 applied to this rule, good
cause would exist to waive the
negotiated rulemaking requirement,
since, as explained above, notice and
comment rulemaking is not practicable
or in the public interest in this case.
The master calendar requirement in
section 482 of the HEA likewise does
not apply to this rule, because the rule
does not relate to the delivery of student
aid funds under title IV.
Additionally, the APA generally
requires that regulations be published at
least 30 days before their effective date,
except as otherwise provided by the
agency for good cause found and
published with the rule (5 U.S.C.
553(d)(3)). As described above, good
cause exists for this rule to be effective
upon publication in light of the current
national emergency and the importance
of institutions properly distributing the
HEERF allocations via emergency
financial aid grants to students to help
with their expenses related to the
disruption of campus operations due to
COVID–19. Under the CRA, a major rule
may take effect no sooner than 60
calendar days after an agency submits a
CRA report to Congress or the rule is
published in the Federal Register,
whichever is later. 5 U.S.C. 801(a)(3)(A).
However, the CRA creates limited
exceptions to this requirement. See 5
U.S.C. 801 (c), 808. An agency may
invoke the ‘‘good cause’’ exception
under section 808(2) in the case of rules
for which the agency has found ‘‘good
cause’’ under the APA standard in
section 553(b)(B), to issue the rule
without providing the public with an
advance opportunity to comment. As
stated above, the Department has found
good cause to issue this rule without
additional notice and comment
rulemaking, and thus we are not
including the 60-day delayed effective
date in this rule.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the
Office of Management and Budget
(OMB) must determine whether this
regulatory action is ‘‘significant’’ and, if
so, subject to the requirements of the
Executive order and subject to review by
OMB. Section 3(f) of Executive Order
12866 defines a ‘‘significant regulatory
action’’ as an action likely to result in
a rule that may—
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or

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Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule);
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order.
This final regulatory action will have
an annual effect on the economy of
more than $100 million. Therefore, this
regulatory action is an economically
significant regulatory action subject to
review by OMB under section 3(f)(1) of
Executive Order 12866. Pursuant to the
Congressional Review Act (5 U.S.C. 801
et seq.), the Office of Information and
Regulatory Affairs designated this rule
as a ‘‘major rule,’’ as defined by 5 U.S.C.
804(2).
We have also reviewed this action
under Executive Order 13563, which
supplements and explicitly reaffirms the
principles, structures, and definitions
governing regulatory review established
in Executive Order 12866. To the extent
permitted by law, Executive Order
13563 requires that an agency—
(1) Propose or adopt regulations only
upon a reasoned determination that
their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify);
(2) Tailor its regulations to impose the
least burden on society, consistent with
obtaining regulatory objectives and
taking into account—among other things
and to the extent practicable—the costs
of cumulative regulations;
(3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity);
(4) To the extent feasible, specify
performance objectives rather than the
behavior or manner of compliance a
regulated entity must adopt; and
(5) Identify and assess available
alternatives to direct regulation,
including economic incentives—such as
user fees or marketable permits—to
encourage the desired behavior, or
provide information that enables the
public to make choices.
Executive Order 13563 also requires
an agency ‘‘to use the best available
techniques to quantify anticipated
present and future benefits and costs as
accurately as possible.’’ The Office of
Information and Regulatory Affairs of

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OMB has emphasized that these
techniques may include ‘‘identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes.’’
Need for Regulatory Action
The Department is issuing this final
rule to remove the requirement that a
student must be eligible for title IV aid
to receive financial assistance under the
HEERF programs and clarify in the
definition of ‘‘student’’ that any
individual who is or was enrolled at an
eligible institution on or after the date
the national emergency was declared for
COVID–19 may qualify for assistance
under the HEERF programs. The final
rule also applies the revised definition
of ‘‘student’’ to funds to be distributed
under CRRSAA and ARP, as well as the
CARES Act. This final rule is meant to
provide flexibility and clarify
administrative processes for institutions
so the funds can be provided to eligible
students as efficiently as possible, with
an emphasis on providing funds to
students with exceptional need as
directed by the changes to the HEERF
programs made under the CRRSAA and
the ARP. The final rule also describes
the expansion of access to all students
enrolled at institutions, not just title IV
eligible students. The financial aid
grants under the HEERF programs are
meant to assist students with expenses
related to the pandemic to reduce
disruption to their education, so this
final rule revises the Department’s
interpretation of an eligible ‘‘student’’ so
the funds can be disbursed in a timely
manner and to those students with
exceptional need. Adopting a broad and
simple definition of a ‘‘student’’ allows
the emergency grant funds for students
to maximize their purpose and fully live
up to Congressional intent in time to
assist with the COVID–19 related
expenses the funds are intended to
alleviate.
Costs and Benefits
The emergency financial aid grants
under section 18004 of the CARES Act
are intended to assist eligible students
with expenses related to the COVID–19
pandemic to limit disruption of their
educational activities. In accordance
with OMB Circular A–4 (available at
www.whitehouse.gov/sites/default/files/
omb/assets/omb/circulars/a004/a4.pdf), we are evaluating the costs and
benefits of the final rule compared to a
pre-statutory baseline. The Department
acknowledges that many of the
emergency financial aid grants under
section 18004 of the CARES Act have
already been awarded to students under

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26625

the previous definition of ‘‘student.’’
However, there are still significant
funds available for students under
section 314 of CRRSAA and section
2003 of ARP, so students affected by the
revised definition of student can benefit
from those funds. Therefore, where
applicable in this section, the
Department discusses not only the costs
and benefits of the final rule compared
to a pre-statutory baseline, but also the
costs and benefits relative to institutions
having already made many emergency
financial aid grant awards using the
previous definition of ‘‘student.’’ This
final rule revises which students are
eligible for the grants but does not
change the amount available or the
allocation formulas for providing the
funds to institutions. The dollar amount
of transfers available to eligible students
is a minimum of $6.25 billion and up to
$12.5 billion from the initial HEERF
funding, depending on the amount
institutions retain for institutional
expenses. We have not discounted or
annualized this amount because it is
meant to be disbursed to students as
efficiently as possible. Much of the
initial HEERF funding for students from
the CARES Act has been distributed, so
the revised definition of student will not
affect much of those funds. However,
the additional funding provided by
CRRSAA and ARP makes at least $6.46
billion and $18.37 billion, respectively,
in transfers available to students and the
benefits of those funds are available to
all the students based on the revised
definition.
As described in this preamble, the
Department now agrees with the
majority of commenters that aligning the
eligibility requirements for the HEERF
grants to title IV is not the best policy
to effectuate the goal of helping students
and institutions respond to
circumstances created by the current
pandemic. As commenters noted,
students excluded from receiving grants
because of the eligibility requirements
in the IFR would include some of those
most affected by the COVID–19
pandemic and the lack of emergency
relief funds could significantly disrupt
their educations and economic
prospects. The emergency relief
available under the CARES Act,
CRRSAA, and ARP could help these
students continue their educations. The
Department now agrees that the funding
should be distributed regardless of title
IV eligibility, so the potential costs
noted by the commenters are not
applicable under this final rule. This
final rule explains the expanded
eligibility and allows students to know
if they are eligible to receive such funds

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from their institution. This change from
the IFR will allow institutions to award
grants to their students with the most
need, including students with
significant unmet need that may not
otherwise be eligible for Federal
funding.
Because institutions will determine
how they will distribute funds to their

students, the Department does not know
the exact distribution of who will
receive the grants. Table 1 shows the
estimated pool of potential recipients as
derived from data from the Integrated
Postsecondary Education Data System
(IPEDS) for institutions that received an
allocation. It is not specific to Spring
2020 enrollment but does provide an

indication of the number of students
who could receive funds. The change
from the IFR is reflected in the 1.2
million non-resident alien and 3.3
million students involved exclusively in
distance education programs who are
potentially eligible for grants under the
final rule.

TABLE 1—ESTIMATED POTENTIAL GRANT RECIPIENTS BY CONTROL OF INSTITUTION 5 6

Total Enrollment 1 .............................................................................................
Undergraduate ..........................................................................................
Graduate ...................................................................................................
Non-Resident Alien ..........................................................................................
% All-Distance 2 ...............................................................................................
Distance Education eligible under final rule ....................................................

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Studentswill benefit from assistance
in paying additional expenses
associated with elements included in
their cost of attendance, such as room
and board, that changed with the
disruption of campus activities. As
confirmed by the Internal Revenue
Service, the relief provided under
section 18004 of the CARES Act will not
be considered gross income, so students
have no Federal tax consequences to
deter them from accepting this
assistance. Students will have to work
with their institutions to access the
funds according to the process the
institution establishes for awarding the
relief. As described in the Paperwork
Reduction Act section of this preamble,
the estimated number of students
applying for relief is increased
compared to the IFR published June 17,
2020, but the time per application is
reduced because students would not
have to submit paperwork to prove titleIV eligibility. Students are expected to
take 1,280,908 hours for a total of $22.4
million at a wage rate of $17.50 7 to
apply for emergency relief.
5 Analysis of IPEDS 2018–19 12-month
enrollment file, effy2019 available at https://
nces.ed.gov/ipeds/datacenter/DataFiles.aspx?goTo
ReportId=7.
6 National Center for Education Statistics, Digest
of Education Statistics 2019, Table 311.15. Number
and percentage of students enrolled in degreegranting postsecondary institutions, by distance
education participation, location of student, level of
enrollment, and control and level of institution: Fall
2017 and Fall 2018. Fall 2018 share of students
taking exclusively distance education courses.
Available at https://nces.ed.gov/programs/digest/
d19/tables/dt19lowbar;311.15.asp.
6 Students hourly rate estimated using national
median hourly wage for all occupations. Bureau of
Labor Statistics, May 2020 Occupational
Employment Statistics Data. Available at https://
www.bls.gov/oes/current/oes_nat.htm#00-0000. Last
accessed March 31, 2021.
7 Students’ hourly rate estimated using national
median weekly wage for 16–24 year-olds. Bureau of
Labor Statistics, Labor Force Statistics, Table 3:

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Public

Private

19,335,244
17,493,764
1,841,480
729,367
12.40
1,806,382

5,271,445
3,533,450
1,737,995
420,550
28.40
837,479

Institutions are also affected by this
final rule. They have some flexibility in
determining how they will distribute
the funds they were allocated for this
emergency relief. They will incur some
costs in setting criteria or establishing
an application process for their
students. We assume the distribution of
the funds can largely rely on existing
processes and information involved in
the disbursement financial aid. Several
commenters noted that there would be
a significant burden on institutions in
confirming students’ eligibility for the
emergency relief, including for students
who do not have an existing valid SAR
or ISIR for the 2019–20 or 2020–21
award years. One commenter estimated
that it would take an institution
approximately 148.5 hours to
administer HEERF funds. However,
with the change in the final rule, the
burden on institutions should be
reduced because they do not have to
confirm students’ title IV eligibility.
As described in the Paperwork
Reduction Act section of this preamble,
the burden on institutions may be
reduced compared to the IFR that
involved checking title IV eligibility, but
we do not incorporate that possibility
into the estimated25,680 hours and
$1,203,622 at a wage rate of $46.87 for
postsecondary education
administrators.8
Median usual weekly earnings of full-time wage
and salary workers by age, race, Hispanic or Latino
ethnicity, and sex, not seasonally adjusted.
Available at https://www.bls.gov/webapps/legacy/
cpswktab3.htm. Last accessed April 13, 2021.
8 Bureau of Labor Statistics, Occupational
Employment and Wage Statistics, May 2020
National Occupational Employment and Wage
Estimates Outlook Handbook—Management
Occupations—Postsecondary Administrators,
201920 median hourly wage. Available at https://
https://www.bls.gov/oes/current/oes_nat.htm#110000. Last accessed April 13, 2021.

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Proprietary
2,078,903
1,695,833
383,070
34,221
62.50
614,126

Total
26,685,592
22,723,047
3,962,545
1,184,138
........................
3,257,987

To the extent that students use
emergency financial aid grants to pay
for expenses related to their cost of
attendance, institutions will benefit
from the revenue stemming from
payments that students would otherwise
not be able to make. Table 2 summarizes
the amounts to be allocated to
institutions by sector. The full breakout
of amounts allocated to individual
institutions, including the maximum
that can be allocated to institutional
costs, is available in the Allocations for
section 18004(a)(1) of the CARES Act
document 9 on the Department’s CARES
Act website.10 These allocations were
made according to the formula
described in the Methodology for
Calculating Allocations document 11 on
the Department’s CARES Act website.
The allocation formula emphasizes
institutions’ share of Pell Grant
recipients with 75 percent of the
allocation based on each IHE’s share of
full-time equivalent (FTE) enrollment of
Pell Grant recipients who were not
enrolled in exclusively distance
education prior to the coronavirus
emergency, relative to the share of such
individuals in all institutions. The
remaining 25 percent is based on the
institution’s share of FTE enrollment of
students who were not Pell Grant
recipients and who were not enrolled
exclusively in distance education prior
to the coronavirus emergency. This
formula helps direct relief to
institutions that serve lower income
students as part of their on-campus
operations. Table 2–A summarizes the
9 Available at www2.ed.gov/about/offices/list/
ope/allocationstableinstitutionalportion.pdf.
10 www2.ed.gov/about/offices/list/ope/
caresact.html.
11 Available at www2.ed.gov/about/offices/list/
ope/
heerf90percentformulaallocationexplanation.pdf.

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initial section 18004(a)(1) allocations
that were posted in April 2020 prior to

26627

the allocation of the $1.86 million that
was originally held in reserve.

TABLE 2–A—SUMMARY OF CARES ACT HEERF (a)(1) ALLOCATIONS
Total award
allocation

Type of institution

Minimum amount
for student aid

Maximum amount
for institutional
portion

Public .........................................................................................................................
Private, Non-Profit .....................................................................................................
Proprietary .................................................................................................................

8,904,536,829
2,484,027,454
1,118,690,220

4,452,268,877
1,242,014,126
559,345,530

4,452,267,952
1,242,013,328
559,344,690

Total ....................................................................................................................

12,507,254,503

6,253,628,533

6,253,625,970

As indicated earlier in this preamble,
under CRRSAA, approximately $22.7
billion in additional funding was made
available for institutions of higher
education under HEERF. Funding was
appropriated for the existing (a)(1),
(a)(2) and (a)(3) programs previously
authorized under the CARES Act, as
well as for a new (a)(4) program
authorized under CRRSAA that
provides funds for proprietary
institutions for exclusive use as
financial grants to students. Proprietary
institutions are no longer eligible to
receive awards under the (a)(1) program.
These funds were allocated according
to a slightly revised formula, but

institutions were required to use at least
the same amount for student grants as
they did under the original HEERF
allocation. CRRSAA appropriates more
funding (approximately $22.7 billion
instead of $12.6 billion) for
supplemental and new awards under
CRRSAA section 314(a)(1), so, on
average, a larger share of (a)(1)
allocations will be available for
institutional support than under the
CARES Act. The allocation methodology
is described in the Methodology for
Calculating Allocations Under Section
314(a)(1) document posted January 14,
2021.12 Students enrolled in exclusively
distance education courses are included

in the CRRSAA section 314(a)(1)
allocation formula. Institutions will now
receive allocations that factor in such
students under the formula, and the
formula also allows exclusively online
institutions that were ineligible for
funding under section 18004(a)(1) of the
CARES Act to apply for grant funds.
Amounts apportioned for students
enrolled in exclusively distance
education courses may be used only for
financial aid grants to students. Table
2B summarizes the allocations to
institutions of CRRSAA funds.

TABLE 2–B—SUMMARY OF CRRSAA (a)(1) AND (a)(4) ALLOCATIONS
Total award
allocation

Type of institution

Minimum amount
for student aid

Maximum amount
for institutional
portion

Public .........................................................................................................................
Private, Non-Profit .....................................................................................................
Proprietary .................................................................................................................

16,440,482,886
4,077,819,283
680,914,080

4,475,143,071
1,308,911,589
680,914,0800

11,965,339,815
2,768,907,694
..............................

Total ....................................................................................................................

21,199,216,249

6,464,968,740

14,734,247,509

TABLE 2–C—SUMMARY OF ARP (a)(1) AND (a)(4) ALLOCATIONS
Total award
allocation

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Type of institution

Minimum amount
for student aid

Maximum amount
for institutional
portion

Public .........................................................................................................................
Private, Non-Profit .....................................................................................................
Proprietary .................................................................................................................

28,830,604,105
7,191,354,595
395,845,7000

14,657,490,881
3,713,709,802
395,845,7000

14,173,113,224
3,477,644,793
..............................

Total ....................................................................................................................

36,417,804,400

18,767,046,383

17,650,758,017

We estimate that the definition of
student eligibility for the financial aid
grants to students will not have an
impact on the Federal budget. The
CARES Act provided a maximum of
$12.5 billion, with a minimum of $6.25
billion required to be spent on
emergency financial aid grants to
students and not spent on institutional

expenses. The definition of student
eligibility also applies to the $22.7
billion in additional funding
appropriated under CRRSAA and $39.6
billion under ARP. These totals include
amounts available under sections (a)(2)
and (a)(3) of CARES, CRRSAA, and ARP
that provide funds to minority-serving
institutions and as supplemental

assistance to private, non-profit, and
public institutions to be awarded
competitively. The final rule does not
impact the Federal budget because it
expands which students are eligible to
receive emergency relief provided by
the CARES Act, CRRSAA, and ARP but
does not change the amount available
for such grants. As described in the

12 https://www2.ed.gov/about/offices/list/ope/
314a1methodologyheerfii.pdf.

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Costs, Benefits, and Transfers section
related to institutions, allocations were
determined in April 2020 for the CARES
Act funds with $50 million held in
reserve to account for data limitations in
allocating the initial amounts to eligible
institutions. When issuing the interim
final rule, we anticipated that $12.5
billion would ultimately be disbursed in
2020, and therefore estimated $12.5
billion in transfers in 2020 relative to a
pre-statutory baseline. Reserve
allocations of $1.86 million went out

but the full $50 million was not needed,
and all unobligated CARES (a)(1)
funding was transferred to CRRSAA
(a)(1) funding. The definition of student
also applies to $22.7 billion in CRRSAA
funds allocated in January 2021 and
$39.6 billion in ARP funds which will
be allocated to institutions in April
2021.
Accounting Statement
As required by OMB Circular A–4, in
the following table we have prepared an

accounting statement showing the
classification of the impacts associated
with the provisions of these final
regulations in 2020–2021, using 3
percent and 7 percent discount rates.
This table provides our best estimate of
the changes in monetized transfers in
2020–2021 as a result of this final rule.
We note that transfers below flow from
the Federal Government to eligible
students and are processed through
institutions.

TABLE 3—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED IMPACTS IN 2020–2021
[In millions]
Category

Benefits

Assistance may support students continuing in their programs .............................................................................

Not quantified
Costs

Paperwork burden on institutions to administer funds and on students to apply ...................................................

7%
$23.6

Category

Transfers

Minimum relief for eligible students to help with additional expenses due to covid–19 pandemic (HEERF from
CARES Act, CRRSAA, and ARP) .......................................................................................................................
Maximum assistance to institutions for COVID–19 pandemic related expenses from CARES Act, CRRSAA,
and ARP ...............................................................................................................................................................
Funding available to HBCUs, TTCUs, MSIs, and SIPs under CARES, CRRSAA and ARP (a)(2) .......................
Competitively awarded supplemental assistance to private, non-profit and public institutions under CARES,
CRRSAA and ARP (a)(3) .....................................................................................................................................

Regulatory Flexibility Act Certification
The Secretary certifies that these
regulations will not have a significant
negative economic impact on a
substantial number of small entities.
The U.S. Small Business Administration
Size Standards define ‘‘small entities’’
as for-profit or nonprofit institutions
with total annual revenue below
$7,000,000 or, if they are institutions
controlled by small governmental
jurisdictions (that are comprised of
cities, counties, towns, townships,

3%
$23.6

villages, school districts, or special
districts), with a population of less than
50,000.
However, as noted in several of the
Department’s recent regulations, we
believe that an enrollment-based
standard for small entity status is more
applicable to institutions of higher
education. The Department recently
proposed a size classification based on
enrollment using IPEDS data that
established the percentage of
institutions in various sectors
considered to be small entities, as

7%
$31,486

3%
$31,486

$38,639
$5,718

$38,639
$5,718

$660.2

$660.2

shown in Table 4. We described this
size classification in the NPRM
published in the Federal Register on
July 31, 2018 for the proposed borrower
defense rule (83 FR 37242, 37302). The
Department discussed the proposed
standard with the Chief Counsel for
Advocacy of the Small Business
Administration, and while no change
has been finalized, the Department
continues to believe this approach better
reflects a common basis for determining
size categories that is linked to the
provision of educational services.

TABLE 4—SMALL ENTITIES UNDER ENROLLMENT BASED DEFINITION

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Sector

Small

Total

Percent

2-year Public ................................................................................................................................
2-year Private, Non-Profit ............................................................................................................
2-year Proprietary ........................................................................................................................
4-year Public ................................................................................................................................
4-year Private, Non-Profit ............................................................................................................
4-year Proprietary ........................................................................................................................

342
219
2,147
64
799
425

1,240
259
2,463
759
1,672
558

28
85
87
8
48
76

Total ......................................................................................................................................

3,996

6,951

57

As described in the Regulatory Impact
Analysis, institutions may benefit from
applying no more than 50 percent of
their allocation of CARES Act HEERF

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funds to institutional costs, so some
small entities will benefit from those
revenues. Public and private, non-profit
institutions can use allocated funds

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from CRRSAA and ARP above the
amount they received under the CARES
Act for institutional expenses. They will
also have to establish a process for

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administering and disbursing the funds.
We expect that the 2,586 estimated
small entities allocated funds for this
purpose under the CARES Act,
CRRSAA, and ARP will spend a total of
5,172 hours totaling $242,412 at a wage

rate of $46.87 13 for postsecondary
administrators to administer the
distribution of the relief.
Table 5 shows the allocations of funds
to small entities by sector, with any
institution for which there was no small

business indicator available considered
a small entity. As for all institutions, the
allocations of funds to specific small
institutions are available on the
Department’s CARES website,14
CRRSAA website,15 and ARP website.

TABLE 5—SUMMARY OF ALLOCATIONS OF (a)(1) AND (a)(4) FUNDS TO SMALL ENTITIES BY SECTOR
Source

Private ....................................................

Non-Profit ..............................................
CARES Act ............................................
CRRSAA ...............................................
ARP .......................................................
................................................................
CARES Act ............................................
CRRSAA ...............................................
ARP .......................................................
................................................................
CARES Act ............................................
CRRSAA ...............................................
ARP .......................................................
................................................................
CARES Act ............................................
CRRSAA ...............................................
ARP .......................................................

Public .....................................................

Proprietary ..............................................

Total .......................................................

Because institutions control the
distribution of the funds to eligible
students and have flexibility to establish
a process suitable to their
circumstances, no alternatives were
considered specifically for small
entities.
Paperwork Reduction Act of 1995

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Sum of total
allocation

Sector

As part of its continuing effort to
reduce paperwork and respondent
burden, the Department provides the
general public and Federal agencies
with an opportunity to comment on
proposed and continuing collections of
information, in accordance with the
Paperwork Reduction Act of 1995 (PRA)
(44 U.S.C. 3506(c)(2)(A)). This helps
ensure that: The public understands the
Department’s collection instructions,
respondents can provide the requested
data in the desired format, reporting
burden (time and financial resources) is
minimized, collection instruments are
clearly understood, and the Department
can properly assess the impact of
collection requirements on respondents.
In the IFR, the Department
interpreted, for purposes of determining
eligibility for the CARES Act funds, the
term ‘‘student,’’ to mean a person who
is eligible under section 484 of the HEA
to receive title IV aid, as suggested by
13 Bureau of Labor Statistics, Occupational
Employment and Wage Statistics, May 2020
National Occupational Employment and Wage
Estimates Outlook Handbook—Management
Occupations–Postsecondary Administrators,

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1,696,561,228
295,300,392
512,382,528
888,878,308
1,243,353,304
266,608,121
204,286,897
772,458,286
554,759,869
57,474,850
307,916,595
189,368,424
3,494,674,401
619,383,363
1,024,586,020
1,850,705,018

Sum of minimum
award to students

Sum of maximum
award to
institutions

248,701,847
14,346,167
166,085,661
68,270,019
602,193,954
133,304,213
68,130,854
400,758,887
431,554,396
28,737,500
307,916,595
94,900,301
1,282,450,197
176,387,880
542,133,110
563,929,207

675,401,095
280,954,225
346,296,867
48,150,003
641,159,350
133,303,908
136,156,043
371,699,399
123,205,473
28,737,350
0
94,468,123
1,439,765,918
442,995,483
482,452,910
514,317,525

the references to title IV in the context
of section 18004.
Based on comments received on the
IFR and further review of the CARES
Act, including in light of legal
challenges, the Department has been
persuaded that this definition was too
prescriptive. In this final rule the
Department has modified the definition
of a student, for the purposes of
receiving emergency financial aid grants
under the Higher Education Emergency
Relief Fund programs as originally
enacted under the CARES Act, to be an
individual who is or was enrolled at an
eligible institution on or after the date
of declaration of the national emergency
concerning the novel coronavirus
disease. The change in the definition of
a student for these purposes is also
supported in subsequent passage of the
CRRSAA and ARP. Please refer to the
supplementary information and
Analysis of Comments and Changes
earlier in this preamble for further
information.
Some commenters challenged the
estimates of hours and costs from the
IFR, mostly on the basis that they were
too low or did not account for necessary
steps. Because the revised definition of
‘‘student’’ in this final rule no longer
necessitates a more detailed review of
student eligibility for funding, there has

been no change to the estimated burden
on institutions from the IFR. We
continue to believe that many
institutions expanded their current
financial aid appeals process and utilize
that framework to receive requests for
COVID–19 assistance from eligible
students. We maintain the estimate that
each institution that received an
allocation required five hours to set up
any new form for students to complete
and establish review and recordkeeping
processes. The estimated burden for the
1,651 private institutions remains 8,255
hours (1,651 × 5 hours). The estimated
burden for the 1,641 proprietary
institutions remains 8,205 hours (1,641
× 5 hours). The estimated burden for the
1,844 public institutions remains 9,220
(1,844 × 5 hours). The total burden to all
institutions receiving an allocation of
funds remains 25,680 hours (5,136
institutions × 5 hours).
Because the definition of ‘‘student’’
has been broadened in this final rule,
the universe of students eligible to
receive funds has been recalculated.
Using the unduplicated head count for
2018–2019 as reported by IPEDS, the
number of enrolled students is
calculated at 26,685,592. We estimate
that 60 percent, or 16,011,355 of those
eligible students may request additional
aid from their institution based on

201920 median hourly wage. Available at https://
https://www.bls.gov/oes/current/oes_nat.htm#110000. Last accessed April 13, 2021.

14 Available at https://www2.ed.gov/about/
offices/list/ope/allocationstableinstitutional
portion.pdf.
15 Available at https://www2.ed.gov/about/
offices/list/ope/crrsaa.html.

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changed circumstances due to the
coronavirus. As students are no longer
required to show title IV eligibility to
receive this additional aid, we are
adjusting the time for students to make
a request for additional funds from their
institution. We estimate that it would
take approximately 5 minutes per
student to complete a request for
additional aid for a total student burden
of 1,280,908 hours (.08 hours ×
16,011,355 students).

An emergency collection, 1840–0844,
was previously approved by OMB on
June 17, 2020 for the burden assessed to
both institutions and students as noted
in the IFR and ICR supporting
statement. The emergency collection
had an expiration date of December 31,
2020. The comment period for the ICR
closed August 18, 2020. Of the four
comments received for the ICR two were
substantive comments that echoed
comments filed for the IFR. The
emergency clearance lapsed without

filing either a 30-day public comment
period request for the ICR or a request
to discontinue the ICR.
The Department received emergency
approval under OMB control number
1840–0857 in order to allow institutions
to utilize the revised student definition
for purposes of disbursing funds to
students as soon as possible. The
Department will publish 60-day and 30day Federal Register notices as required
by 5 CFR 1320.8(d), soliciting comments
on the information collection.

1840–XXXX—ELIGIBILITY OF STUDENTS AT INSTITUTIONS OF HIGHER EDUCATION FOR FUNDS UNDER THE HEERF
PROGRAMS
Number of
respondents

Affected entity

Hours per
response

Total burden

Estimate costs
student $17.50
institutions $46.87

Individual Student ..........................................................
Private Institution ...........................................................
Proprietary Institution .....................................................
Public Institution .............................................................

16,011,355
1,651
1,641
1,844

16,011,355
1,651
1,641
1,844

.08
5
5
5

1,280,908
8,255
8,205
9,220

$22,415,890
386,912
384,568
432,141

Total ........................................................................

16,016,491

16,016,491

........................

1,306,588

23,619,511

Federalism

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Number of
responses

Executive Order 13132 requires us to
ensure meaningful and timely input by
State and local elected officials in the
development of regulatory policies that
have federalism implications.
‘‘Federalism implications’’ means
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government.
In the IFR, we solicited comments on
whether the rule may have federalism
implications and encouraged State and
local elected officials to review and
provide comments. In the Public
Comment section of this preamble, we
discuss any comments we received on
this subject.
Accessible Format: On request to the
program contact person listed under FOR
FURTHER INFORMATION CONTACT,
individuals with disabilities can obtain
this document in an accessible format.
The Department will provide the
requestor with an accessible format that
may include Rich Text Format (RTF) or
text format (txt), a thumb drive, an MP3
file, braille, large print, audiotape, or
compact disc, or other accessible format.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. You may access the official
edition of the Federal Register and the
Code of Federal Regulations at
www.govinfo.gov. At this site, you can
view this document, as well as all other

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documents of this Department
published in the Federal Register, in
text or PDF. To use PDF, you must have
Adobe Acrobat Reader, which is
available for free on the site.
You may also access documents of the
Department published in the Federal
Register by using the article search
feature at www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
List of Subjects
34 CFR Part 668
Administrative practice and
procedure, Aliens, Colleges and
universities, Consumer protection,
Grant programs—education, Loan
programs—education, Reporting and
recordkeeping requirements, Selective
Service System, Student aid, Vocational
education.
34 CFR Part 677
Colleges and universities, Grant
programs—education, Reporting and
recordkeeping requirements.
Michelle Asha Cooper,
Acting Assistant Secretary for Postsecondary
Education.

For the reasons discussed in the
preamble, the Secretary amends parts
668 and 677 of title 34 of the Code of
Federal Regulations as follows:

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PART 668—STUDENT ASSISTANCE
GENERAL PROVISIONS
■ 1. The general authority citation for

part 668 continues to read as follows:
Authority: 20 U.S.C. 1001–1003, 1070g,
1085, 1088, 1091, 1092, 1094, 1099c, 1099c–
1, 1221–3, and 1231a, unless otherwise
noted.

*

*

§ 668.2

*

*

*

[Amended]

■ 2. In § 668.2, amend paragraph (b) by

removing the definition of ‘‘Student’’
and the authority citation following the
definition.
PART 677—HIGHER EDUCATION
EMERGENCY RELIEF FUND
PROGRAMS
■ 3. The authority citation for part 677

is revised to read as follows:
Authority: 20 U.S.C. 1221e–3; section
314(a)(2), Pub. L. 116–260, Division M, 134
Stat. 1182, unless otherwise noted.
■ 4. Add subpart B to read as follows:

Subpart B—Student Eligibility
Sec.
677.3
677.4

Student eligibility.
[Reserved]

Authority: 20 U.S.C. 1221e–3, 3474;
Section 18004, Pub. L. 116–136, 134 Stat.
281, as amended through Section 314, Pub.
L. 116–260, Division M, 134 Stat. 1182, and
Section 2003, Pub. L. 117–2, 135 Stat. 4.
§ 677.3

Student eligibility.

Student, for purposes of the phrases
‘‘grants to students’’, ‘‘emergency

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financial aid grants to students’’ or
‘‘financial aid grants to students’’ as
used in the Higher Education
Emergency Relief (HEERF) programs, is
defined as any individual who is or was
enrolled (as defined in 34 CFR 668.2) at

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an eligible institution (as defined in 34
CFR 600.2) on or after March 13, 2020,
the date of declaration of the national
emergency concerning the novel
coronavirus disease.

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§ 677.4

26631

[Reserved]

[FR Doc. 2021–10190 Filed 5–12–21; 8:45 am]
BILLING CODE 4000–01–P

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